NOTICESRenewals and Requests for Nominations:Advisory Committee on Beginning Farmers and Ranchers,75105-751062012-30471AnimalAnimal and Plant Health Inspection ServiceRULESImportation of Sand Pears from China,75007-750112012-30532Antitrust DivisionAntitrust DivisionNOTICESMembership Changes under the National Cooperative Research and Production Act:Connected Media Experience, Inc.,75190-751912012-30620ODVA, Inc.,751912012-30618AntitrustSee

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We are amending the fruits and vegetables regulations to allow the importation of sand pears (Pyrus pyrifolia) from China into the United States. As a condition of entry, sand pears from areas in China in which the Oriental fruit fly (Bactrocera dorsalis) is not known to exist will have to be produced in accordance with a systems approach that includes requirements for registration of places of production and packinghouses, sourcing of pest-free propagative material, inspection for quarantine pests at set intervals by the national plant protection organization of China, bagging of fruit, safeguarding, labeling, and importation in commercial consignments. Sand pears from areas in China in which Oriental fruit fly is known to exist may be imported into the United States if, in addition to these requirements, the places of production and packinghouses have a monitoring system in place for Oriental fruit fly and the pears are treated with cold treatment. All sand pears from China will also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that all conditions for the importation of the pears have been met and that the consignment of pears has been inspected and found free of quarantine pests. This action will allow for the importation of sand pears from China into the United States while continuing to provide protection against the introduction of quarantine pests.

The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-56, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests. The regulations currently allow for the importation of both Ya pears (Pyrus bretschneideri) and fragrant pears (Pyrussp. nr.communis) from China.

The national plant protection organization (NPPO) of China requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow sand pears1(Pyrus pyrifolia) from China also to be imported into the United States.

As part of our evaluation of China's request, we prepared a pest risk assessment (PRA), titled “Importation of Fresh Fruit of Chinese Sand Pear,Pyrus pyrifolia,from China, including the Special Administrative Regions of Hong Kong and Macau, into the Entire United States, Including all Territories” (July 2009). The PRA evaluated the risks associated with the importation of sand pears into the United States from China, and identified 16 pests of quarantine significance present in China that could be introduced into the United States through the importation of sand pears. The PRA presented a number of potential options to mitigate the risks posed by these plant pests. Based on these options, we prepared a risk management document (RMD). The RMD recommended specific measures to mitigate these risks.

Based on the recommendations of the RMD, on December 16, 2011, we published a proposed rule2in theFederal Register(76 FR 78168-78172, Docket No. APHIS-2011-0007) to authorize the importation of sand pears from China into the United States. We solicited comments concerning the proposed rule for 60 days ending February 14, 2012. We received five comments by that date. They were from the NPPO of China, a State department of agriculture, an organization representing State departments of agriculture, a technical committee representing the U.S. pear industry, and a private citizen. The comments we received are discussed below, by topic.

The PRA identified the following pests of quarantine significance as being likely to follow the pathway on imported sand pears from China:

•Acrobasis pyrivorella,pear fruit moth.

•Alternaria gaisenNagano, the cause of black spot of pear.

•Amphitetranychus viennensis(Zacher), Hawthorn spider mite.

•Aphanostigma iaksuiense(Kishida), an aphid.

•Bactrocera dorsalis,Oriental fruit fly.

•Caleptrimerus neimongolensisKuang and Geng, a mite.

•Carposina sasakiiMatsumora, peach fruit moth.

•Ceroplastes japonicusGreen, Japanese wax scale.

•Ceroplastes rubensMaskell, red wax scale.

•Congothes punctiferalis(Guenée), yellow peach moth.

•Grapholita inopinata,Manchurian fruit moth.

•Guignardia pyricola(Nose) W. Yamamoto, a phytopathogenic fungus.

•Monilinia fructigenaHoney in Whetzel, the cause of brown rot.

•Phenacoccus pergandeiCockerell, a mealybug.

•Planococcus kraunhiae(Kuwana), a mealybug.

•Venturia nashicolaTanaka & Yamamoto, pear scab fungus.

One commenter stated that recent research conducted on diseases ofMalusspp. has discovered that thecausal agent of apple and pear ring spot, which had long been considered to beG. pyricola(Nose) W. Yamamoto, is in factBotryosphaeria dothidea.The commenter pointed out thatB. dothideais widely prevalent in the United States, and stated that it thus should not be considered a pest of quarantine significance. The commenter also stated that, based on this research,G. pyricolashould not be considered a pest of quarantine significance for sand pears from China. The commenter cited a peer-reviewed article3(referred to below as Tanget al.) detailing the research that had been conducted.

We agree that Tanget al.provides evidence in support ofB. dothideabeing a causal agent of apple ring spot. However, we do not consider this evidence sufficient to removeG. pyricolafrom the list of pests of quarantine significance for sand pears from China. The research detailed in Tanget al.appears to have focused primarily onMalusspp. Researchers included only a few fungi ofPyrusspp. for evaluation, and the discussion section of Tanget al.refers exclusively to fungi isolated fromMalusspp. It is even unclear whetherB. dothideawas the onlyBotryosphaeriaspecies that researchers isolated fromPyrusspp.

The scope and nature of the research conducted onPyrusspp. is unclear in Tanget al.In order for us to consider removingG. pyricolafrom the list of pests of quarantine significance for sand pears from China, Tanget al.would have to specify that the research conducted onMalusspp. is directly applicable toPyrusspp. It does not do so; hence we continue to considerG. pyricolaa pest of quarantine significance for sand pears from China.

Another commenter stated that the list of pests of quarantine significance for sand pears from China should be expanded to include two additional pests,Alternaria yaliinficiens,a phytopathogenic fungus, andMonilia polystroma,the cause of Asiatic brown rot. The commenter pointed out thatA. yaliinficiensis frequently detected on Ya pears in China, andM. polystroma,a well-documented pest of sand pears, is known to exist in China.

We have been able to find no evidence suggesting that sand pears are a host ofA. yaliinficiens,and the commenter did not provide any references on this subject. Ya pears arePyrus bretschneideri,a separate species from sand pears.

We agree thatM. polystromais known to exist in China, and sand pears are a known host of this pest. However, to date,M. polystromahas only been detected in Heilongjiang province. This province does not produce sand pears for export and is geographically isolated from the provinces in China that account for the bulk of pear exports from China, Hebei and Shandong. There is, moreover, no evidence of artificial spread ofM. polystromawithin China. For these reasons, at this time, we do not considerM. polystromalikely to follow the pathway of sand pears imported from China. We will, however, continue to monitor the presence ofM. polystromain China and, if necessary, take appropriate action to prevent its introduction.

A commenter asked that the PRA be updated to include a list of all pests of quarantine significance that have been detected on sand pears from China exported to other countries.

Foreign countries are free to designate plant pests as being of quarantine significance, without reference to the designations of other countries. Thus, there is no guarantee that a foreign country's pest list for sand pears is equivalent to our own. Moreover, foreign countries' conditions for importation of fruits and vegetables often vary significantly from those of the United States. Accordingly, a foreign country's pest interception data for a particular commodity should not be considered a reliable predictor of possible pest interceptions for that same commodity at ports of entry within the United States. We are therefore not amending the PRA in the manner requested by the commenter.

The same commenter pointed out that the PRA contained a list of pest interceptions on Ya and fragrant pears from China imported into the United States between 1995 and 2009, but this list did not include information for 2010 or 2011. The commenter also pointed out that the list did not group detections based on the port of entry at which the pest was detected. The commenter asked that the list be updated to include information through 2011 and to sort this information by port of entry.

We do not consider such updates to be necessary. Interceptions in 2010 and 2011 do not disclose any additional pests of quarantine significance that had not previously been detected on the pears. Moreover, the list was provided in order to illustrate the starting point from which we conducted our evaluation of the pests of quarantine significance that could follow the pathway on sand pears from China imported into the United States. Hence, changing the scope of the list or its presentation would not alter the results of our evaluation.

Comments Regarding the Proposed Rule

One commenter stated that, based on the number of pests of quarantine significance likely to follow the pathway on sand pears imported into the United States from China, the plant pest risk associated with the importation of sand pears from China was significant, and we should therefore not authorize such importation.

Similarly, two commenters stated that the proposed conditions for importation of sand pears from China in the proposed rule did not take into consideration the unique climate of Florida, which the commenters asserted is more conducive to the establishment of fruit flies than that of other States. The commenters pointed out that imported fruit containing dead fruit fly larvae had been discovered in Florida, and stated that these detections call into question the efficacy of APHIS' systems approaches for these pests.

We agree that there are many pests on the pest list for sand pears from China, and one of these,B. dorsalis,could become established in Florida, if introduced. However, for the reasons described in the RMD that accompanied the proposed rule, we have determined that the measures specified in the proposed rule will effectively mitigate the risk associated with the importation of sand pears from China into any area of the United States. The commenters did not provide any evidence suggesting that the mitigations are not effective.

To that end, we note that the discovery of dead larvae in imported fruit does not call into question the efficacy of the systems approaches under which the fruit has been imported. Rather, it suggests the systems approaches have been effective in neutralizing the larvae.

A commenter asked whether the proposed rule had provisions that would address the risk thatV. nashicolaorM. fructigenawould follow the pathway on sand pears from China.

As detailed in the RMD that accompanied the proposed rule, there are several provisions of the proposed rule that address the risk posed by phytopathogenic fungi such asV. nashicolaandM. fructigena.These include: Registration of places of production and packinghouses with the NPPO of China, inspections for quarantine pests at set intervals, bagging of fruit, safeguarding, labeling, and importation in commercial consignments.

One commenter stated that fertility management, that is, the use of nutrient-rich soil composed primarily of decaying organic matter, has been demonstrated to be effective in reducing population densities of certain plant pests on host plants. The commenter suggested that fertility management be explored as an alternative to the systems approach of the proposed rule, or, at least, certain provisions of that approach.

APHIS will continue to monitor the efficacy of this and other possible mitigation measures for sand pears from China. If we determine alternate measures to be effective in reducing the risk associated with the importation of sand pears from China, we may initiate rulemaking to add them to the regulations.

In the proposed rule, we proposed to require all sand pears imported into the United States from China to be grown at places of production that are registered with the NPPO of China. We also proposed that the NPPO of China would have to inspect registered places of production prior to harvest for signs of infestations and allow APHIS to monitor the inspections. Finally, we proposed that, if any of the pests of quarantine significance likely to follow the pathway on sand pears from China were detected at a registered place of production, we could reject individual consignments from that place of production or prohibit the importation of sand pears from the place of production for the remainder of the season.

The NPPO of China stated that it had entered into a memorandum of understanding (MOU) with APHIS regarding inspections of sand pears that would take place at ports of entry in the United States if the proposed rule was finalized. The NPPO stated that it was their understanding that these port-of-entry inspections obviated pre-harvest inspections of registered places of production. Accordingly, the NPPO asked that we modify the proposed rule to remove references to such pre-harvest inspections.

We are making no change in response to this comment. The MOU referenced by the NPPO pertains to general inspections of imported fruits and vegetables that APHIS conducts in accordance with § 319.56-3 of the regulations. As specified in the MOU, such inspections are meant to complement, rather than supplant, the provisions of the proposed rule, including pre-harvest inspections of registered places of production. Moreover, we note that such pre-harvest inspections are necessary not only to prevent infested fruit from being imported to the United States, but also so that APHIS has assurances that places of production have implemented and are maintaining all provisions of the proposed rule that pertain to them, such as bagging of sand pears destined for export to the United States.

Miscellaneous

In our December 2011 proposed rule, proposed paragraph (f)(1) of § 319.56-55 contained minimum requirements for the trapping systems that places of production and packinghouses would need to have in place forB. dorsalisin order to export sand pears from areas in China south of the 33rd parallel to the United States. Additionally, proposed paragraph (f)(4) proposed to require pears from such areas to be treated in accordance with 7 CFR part 305, which contains our requirements governing approved treatments of imported commodities.

Since the proposed rule was issued, we have adopted a general Agency policy of adding minimum trapping requirements to operational workplans. Among other reasons, this allows us to change the frequency and distance at which traps must be placed in response to changes in population densities forB. dorsalisin an exporting region. We have also begun to add standards for application of treatments to operational workplans; among other reasons, this allows us to prescribe in greater detail best practices for the application of various treatments.

Hence, in this final rule, we are amending paragraph (f)(1) to specify that the trapping systems must meet the requirements of the operational workplan, and (f)(3) to specify the treatments must be applied in accordance with not only 7 CFR part 305 but also the operational workplan.

In the proposed rule, we proposed to add the conditions governing the importation of sand pears from China as § 319.56-55. In this final rule, they are added as § 319.56-57.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 2 in this document for a link to Regulations.gov) or by contacting the person listed underFOR FURTHER INFORMATION CONTACT.

This rule will amend the regulations to allow, under certain conditions, the importation into the United States of sand pear from China. This fruit is produced in the United States in limited quantities, primarily in Illinois, Virginia, West Virginia, and Maryland.

Farms producing pears are classified within the North American Industry Classification System under Other Noncitrus Fruit Farming. The average 2007 market value of crops sold by farms classified within the industry Fruit and Tree Nut Farming (which includes Other Noncitrus Fruit Farming) was less than $188,000, an amount well below the Small Business Administration's small-entity standard of annual receipts of not more than $750,000. We infer that the majority of farms producing pears, including sand pears, are small entities.

China is expecting to export 24,000 metric tons of sand pear annually to the United States. This amount is less than 5 percent of average annual production of all varieties of pear produced in the United States. We do not know the quantity or value of sand pear produced in the United States, or the quantity or value of sand pear imported from other countries. Nor do we know the substitutability of sand pear for other types of pears produced domestically. While the United States is a net exporter of pears overall, it is likely that the U.S. supply of sand pear is largely imported. Without information on the domestic and foreign quantities supplied and the substitutability of sand pear for other pear varieties, we are unable to evaluate potential effects of the rule for U.S. producers.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this rule have been approved by theOffice of Management and Budget (OMB) under OMB control number 0579-0390.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

2. A new § 319.56-57 is added to read as follows:§ 319.56-57Sand pears from China.

Fresh sand pears (Pyrus pyrifolia) from China may be imported into the United States from China only under the conditions described in this section. These conditions are designed to prevent the introduction of the following quarantine pests:Acrobasis pyrivorella,pear fruit moth;Alternaria gaisenNagano, the cause of black spot of sand pear;Amphitetranychus viennensis(Zacher), Hawthorn spider mite;Aphanostigma iaksuiense(Kishida), an aphid;Bactrocera dorsalis,Oriental fruit fly;Caleptrimerus neimongolensisKuang and Geng, a mite;Carposina sasakiiMatsumora, peach fruit moth;Ceroplastes japonicusGreen, Japanese wax scale;Ceroplastes rubensMaskell, red wax scale;Conogothes punctiferalis(Guenée), yellow peach moth;Grapholita inopinata,Manchurian fruit moth;Guignardiapyricola (Nose) W. Yamamoto, a phytopathogenic fungus;Monilinia fructigenaHoney in Whetzel, the cause of brown fruit rot;Phenacoccus pergandeiCockerell, a mealybug;Planococcus kraunhiae(Kuwana), a mealybug; andVenturia nashicolaTanaka and Yamamoto, pear scab fungus. The conditions for importation of all fresh sand pears from China are found in paragraphs (a) through (e) of this section; additional conditions for sand pears imported from areas of China south of the 33rd parallel are found in paragraph (f) of this section.

(a)General requirements.(1) The national plant protection organization (NPPO) of China must provide an operational workplan to APHIS that details the activities that the NPPO of China will, subject to APHIS' approval of the workplan, carry out to meet the requirements of this section.

(2) The pears must be grown at places of production that are registered with the NPPO of China.

(3) The pears must be packed for export to the United States in pest-exclusionary packinghouses that are registered with the NPPO of China.

(4) Sand pears from China may be imported in commercial consignments only.

(b)Place of production requirements.(1) All propagative material entering a registered place of production must be tested and certified by the NPPO of China as being free of quarantine pests.

(2) The place of production must carry out any phytosanitary measures specified for the place of production under the operational workplan.

(3) When any sand pears destined for export to the United States are still on the tree and are no more than 2.5 centimeters in diameter, double-layered paper bags must be placed wholly over the pears. The bags must remain intact and on the pears until the pears arrive at the packinghouse.

(4) The NPPO of China must visit and inspect registered places of production prior to harvest for signs of infestations and allow APHIS to monitor the inspections. The NPPO must provide records of pest detections and pest detection practices to APHIS, and APHIS must approve these practices.

(5) If any of the quarantine pests listed in the introductory text of this section is detected at a registered place of production, APHIS may reject the consignment or prohibit the importation into the United States of sand pears from the place of production for the remainder of the season. The exportation to the United States of sand pears from the place of production may resume in the next growing season if an investigation is conducted and APHIS and the NPPO conclude that appropriate remedial action has been taken.

(c)Packinghouse requirements.(1) During the time registered packinghouses are in use for packing sand pears for export to the United States, the packinghouses may only accept sand pears that are from registered places of production and that are produced in accordance with the requirements of this section.

(2) Packinghouses must have a tracking system in place to readily identify all sand pears that enter the packinghouse destined for export to the United States back to their place of production.

(3) The NPPO of China or officials authorized by the NPPO must inspect the pears for signs of pest infestation and allow APHIS to monitor the inspections. If any of the quarantine pests listed in the introductory text of this section is detected in a consignment at the packinghouse, APHIS may reject the consignment.

(4) Following the inspection, the packinghouse must follow a handling procedure for the pears that is mutually agreed upon by APHIS and the NPPO of China.

(5) The pears must be packed in cartons that are labeled with the identity of the place of production and the packinghouse.

(6) The cartons must be placed in insect-proof containers, and the containers sealed. The containers of sand pears must be safeguarded during transport to the United States in a manner that will prevent pest infestation.

(d)Shipping requirements.Sealed containers of sand pears destined for export to the United States must be held in a cold storage facility while awaiting export.

(e)Phytosanitary certificate.Each consignment of sand pears imported from China into the United States must be accompanied by a phytosanitary certificate issued by the NPPO of China with an additional declaration stating that the requirements of this section have been met and the consignment has been inspected and found free of quarantine pests.

(f)Additional conditions for sand pears from areas of China south of the 33rd parallel.In addition to the conditions in paragraphs (a) through (e) of this section, sand pears from areas of China south of the 33rd parallel must meet the following conditions for importation into the United States:

(1) The place of production of the pears and the packinghouse in which they are packed must have a trapping system in place forB. dorsalis.At a minimum, the trapping system must meet the requirements of the operational work plan.

(2) The place of production or the packinghouse must retain data regarding the number and location of the traps, aswell as any pests other thanB. dorsalisthat have been caught, and make this information available to APHIS upon request.

(3)(i) The place of production or packinghouse must notify the NPPO of China, and the NPPO of China must notify APHIS, regarding the detection of a singleB. dorsalisin a place of production, packinghouse, or surrounding area within 48 hours of the detection.

(ii) If a singleB. dorsalisis detected in a registered place of production, APHIS will prohibit the importation into the United States of sand pears from the place of production until any mitigation measures determined by APHIS to be necessary to prevent future infestations are taken.

(iii) If a singleB. dorsalisis detected in a registered packinghouse, the packinghouse may not be used to pack sand pears for export to the United States until any mitigation measures determined by APHIS to be necessary to prevent future infestations are taken.

(4) The pears must be treated in accordance with 7 CFR part 305 and the operational workplan.

(Approved by the Office of Management and Budget under control number 0579-0390.)Done in Washington, DC, this 13th day of December 2012.Kevin Shea,Acting Administrator, Animal and Plant Health Inspection Service.[FR Doc. 2012-30532 Filed 12-18-12; 8:45 am]BILLING CODE 3410-34-PDEPARTMENT OF COMMERCEBureau of Industry and Security15 CFR Part 748[Docket No. 110331231-2684-01]RIN 0694-AF19Revisions to Authorization Validated End-User Provisions: Requirement for Notice of Export, Reexport or Transfer (In-Country) and Clarification Regarding Termination of Conditions on VEU AuthorizationsAGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by adding a requirement for persons shipping under Authorization Validated End-User (VEU) to send written notice of such shipments to the recipient VEU. BIS further amends the EAR to clarify that when items subject to item-specific conditions under Authorization VEU no longer require a license for export or reexport or become eligible for shipment under a license exception, as set forth in the EAR, VEUs are no longer bound by the conditions associated with the original receipt of such items. On April 17, 2012, BIS published a proposed rule and requested public comments on these topics (77 FR 22689). The comment period closed June 18, 2012. BIS has addressed the public comments received in response to the proposed rule in this final rule.

Validated end-users (VEUs) are those entities located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license. VEUs and their respective eligible destinations and eligible items are identified in Supplement No. 7 to Part 748 of the EAR. VEUs may obtain eligible items without having to wait for their suppliers to obtain export licenses from BIS.

VEUs are reviewed and approved by the U.S. Government in accordance with the provisions of Section 748.15 and Supplement Nos. 8 and 9 to Part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy and Commerce, and other agencies, as appropriate, is responsible for administering the VEU program.

On April 17, 2012, BIS published a rule soliciting public comments on two proposed amendments to Section 748.15 of the EAR (Authorization Validated End-User (VEU)) (77 FR 22689). BIS proposed requiring persons exporting, reexporting, or transferring (in-country) under Authorization VEU to send written notification to the recipient VEU with details about their shipment within seven days of the shipment. In addition, BIS proposed explicitly clarifying in the EAR that VEUs that are subject to item-specific conditions and have received items subject to such conditions under Authorization VEU would no longer be bound by the conditions associated with the items if the items no longer require a license for export or reexport to the VEU's location or become eligible for shipment under a license exception to the destination. BIS received comments from two entities, which are summarized and responded to below.

Comments and Responses

Comment 1:Both commenters indicated their overall support for the proposed changes and the VEU authorization as a whole. One commenter specifically noted that Authorization VEU had benefited a VEU and its supplier by allowing the purchase and supply of equipment to proceed without the additional lead-time issues often caused by potentially lengthy government approvals.

Response:BIS appreciates this input regarding the VEU program, particularly in light of BIS's efforts to improve the program and make it more effective for U.S. exporters.

Comment 2:Both commenters explained that individual shipments may include items shipped under “multiple authorizations” including Authorization VEU. They asked BIS to clarify that proposed paragraph (g) of Section 748.15 would only require that shippers notify VEUs of items shipped under Authorization VEU and not of items shipped under other authorizations in the same shipment as VEU items. Specifically, one commenter recommended that notification be required to include “a list of the VEU authorized contents and a list of their respective ECCNs.”

Response:BIS recognizes that individual shipments may include items authorized for shipment or transfer under Authorization VEU as well as items being shipped under other EAR authorizations, such as licenses or license exceptions. BIS intends that the notification be required only for items shipped under Authorization VEU and not for any other items shipped with the VEU-authorized items. BIS has amended the text of Section 748.15(g) to specify that the notification requirement applies only to the “VEU-authorized” items in a shipment and to specify that the list suggested by the commenter be included as part of the notification.

Comment 3:Both commenters asked BIS to review its approach to the timing and frequency of notifications under Section 748.15(g). Both commenters recommended that BIS permit consolidated notifications under Authorization VEU, rather than requireseparate notifications for each shipment under Authorization VEU. Specifically, one commenter provided a semiconductor industry-specific example of the multiple transfers of an integrated circuit's layout or design that may be necessary between a semiconductor foundry and its customer to correct design flaws prior to production. The commenter suggested that the exporter should be required to provide only a single notification for such shipments. In addition, both commenters asked that BIS clarify that notification may be made before shipment occurs. One of the commenters specifically suggested that the timing be modified to “no later than seven days after shipment or as mutually agreed in writing by both parties.” This commenter further suggested that BIS could require that the terms of VEU notification be included in Section 748.15(e), which requires that exporters and reexporters obtain from VEUs certifications regarding end use and compliance with VEU requirements. The commenter expressed that this approach would maximize benefits and minimize burdens associated with notification, and would ensure transparency and help to verify compliance.

Response:BIS has reviewed the timing and frequency of notifications and agrees that exporters, reexporters and transferors (in-country) should have the option to consolidate notifications to VEUs when multiple shipments are made under Authorization VEU. BIS therefore has included this as an option in Section 748.15(g). Further, as the timeframe for notification that is appropriate for one VEU and shipper may be inappropriate for others, BIS agrees with the commenter who suggested that notification be within a timeframe that is mutually agreed to in writing by both parties. That mutual agreement must, however, be reached prior to the shipment or transfer. With reference to the comment proposing that BIS require the notification to be included in the certification required under Section 748.15(e) of the EAR, BIS notes that the 748.15(e) certification is required under the EAR only in advance of the first shipment by a supplier to a VEU under Authorization VEU and at no other time thereafter and that while provision of the 748.15(e) certification is the sole responsibility of the VEU, advance agreement on the notification schedule is the responsibility of both the VEU and the shipper. Although a VEU and a shipper may agree to include the notification schedule in the certification, BIS will not require that the schedule be included in the certification. BIS has revised Section 748.15(g) by providing that notifications should be made within a timeframe agreed to in writing by the VEU and the shipper in advance of the initial shipment and has removed the reference to “within seven calendar days” of the shipment. With this modification, BIS clarifies its original intent to permit notification in advance of shipment.

Comment 4:One commenter expressed concern regarding BIS's explanation in the proposed rule that, “BIS intends to improve the ability of VEUs to determine which authorization their suppliers utilized. This will enable VEUs to better determine which set of conditions governs their use of the received item(s) more efficiently, thereby increasing the VEUs' compliance.” The commenter asked that BIS modify this explanation to make clear that the notification requirement's purpose is not to require that companies be able to distinguish between identical items sent under a VEU authorization and other types of authorization. The commenter noted that when identical parts and materials shipped or transferred under different authorizations are commingled within inventories, some VEUs ensure compliance with U.S. law by meeting the requirements of the most restrictive conditions associated with a particular stock-keeping unit (SKU) and keep track of the total quantity of items received under a specific authorization through first-in-first-out (FIFO) and other standard inventory accounting methods.

Response:The use of Authorization VEU requires VEUs to track items received under Authorization VEU, but does not require VEUs to distinguish between identical items sent under Authorization VEU and other types of shipping authorizations. BIS understands that, as a practical matter, individual items in inventory may not be easily or efficiently tracked, and that there are VEUs that fulfill their requirements under Authorization VEU by meeting the most restrictive conditions associated with a particular SKU and tracking the total quantity of items received under a specific authorization through the standard inventory accounting methods described by the commenter.

Comment 5:One commenter encouraged BIS to consider expanding the scope of Authorization VEU by implementing the VEU program in countries other than China and India.

Response:BIS is taking this comment under advisement and is not responding to it here as it is outside the scope of BIS's proposed rule.

Amendments to Section 748.15 of the EARPrior Notification Requirement

In this rule, BIS adopts the amendment to the EAR proposed on April 17, 2012 (77 FR 22689) with some changes. In the April rule, BIS proposed amending Section 748.15 by adding paragraph (g) to require persons exporting, reexporting, or transferring (in-country) under Authorization VEU to send written notification to the recipient VEU with details about their shipment within seven days of the shipment. The April proposal also specified that the notification must include a list of the VEU-authorized contents of the shipment and the quantity of such items that are being, have been, or will be shipped to the respective VEUs, as well as a list of the applicable Export Control Classification Numbers (ECCNs) for VEU-authorized items included in the shipment. This final rule adopts the notification requirement in § 748.15 while making a change from the proposed rule by providing that notification must be made within a timeframe agreed to in writing by the VEU and the persons exporting, reexporting or transferring (in-country), rather than within seven days of the shipment as proposed in the April rule. This final rule also adds that the VEU and the persons exporting, reexporting or transferring (in-country) must agree to the notification timeframe in advance of shipment under Authorization VEU.

As discussed in the proposed rule, the purpose of this new requirement is to enhance the ability of VEUs to comply with the requirements of the VEU program. This amendment to the EAR is not the result of non-compliance with VEU requirements by existing VEUs. With this amendment to the EAR, BIS intends to improve the ability of VEUs to determine which shipments are made to them under Authorization VEU. The use of Authorization VEU requires VEUs to track items received under Authorization VEU, but does not require VEUs to distinguish between identical items sent under Authorization VEU and other types of shipping authorizations. Accordingly, this amendment will enable VEUs to better determine which set of conditions governs their use of the received item(s) more efficiently, thereby better enabling the VEUs' compliance with the EAR.

With this rule, BIS is not requiring a specific form of communication (e.g.,fax, email, letter) for the notification, but does require that it be in a written format. Similarly, the VEU and the shipper may determine if notificationsneed to be made for each Authorization VEU shipment or whether multiple shipments may be the subject of a consolidated notification. As noted above, the notification must be conveyed to the VEU within the time period agreed to in writing by the VEU and the persons exporting, reexporting or transferring (in-country) the VEU items in advance of the initial shipment. VEUs are required to maintain the notifications they receive and exporters and reexporters are required to maintain the notifications they send pursuant to their recordkeeping requirements.

In the proposed rule, BIS also proposed amending Section 748.15(h) to clarify that VEUs that are subject to item-specific conditions and have received items subject to such conditions under Authorization VEU are no longer bound by the conditions associated with the items if the items no longer require a license for export or reexport to the VEU's authorized location or become eligible for shipment under a license exception to the destination. This amendment is the same, in effect, as existing Section 750.7(i) (Terminating license conditions), which generally applies to exporters and reexporters who have shipped under license. No public comments were received on this proposal, and the proposed regulatory text is being adopted with minimal changes, described below.

To supplement the proposed regulatory text, BIS is adding phrasing in paragraph (h) to clarify that when the EAR are amended such that items previously exported, reexported or transferred (in-country) to a VEU under Authorization VEU would be eligible for shipment to the VEU under a License Exception, the items received under Authorization VEU become subject to the terms and conditions of the applicable License Exception and not the original conditions associated with export, reexport or transfer under Authorization VEU. In addition, when the EAR are amended such that items previously exported, reexported or transferred (in-country) to a VEU under Authorization VEU would remain subject to the EAR but become eligible for export without a license under the EAR, the items received under Authorization VEU may only be exported, reexported, transferred (in-country) or disposed of in accordance with the EAR. These two statements are not substantive and were added only in the interest of clarifying the scope of new paragraph (h) on requirements under the EAR. These new sentences also parallel existing Section 750.7(i) (Terminating license conditions).

Records Review

In the proposed rule, BIS further proposed adding new paragraph (i) is to Section 748.15 to remind exporters that records requirements for shipments that were made under Authorization VEU prior to the removal of a license requirement or the availability of a license exception remain subject to the review requirements of paragraph (f)(2) of section 748.15 on and after the date that the license requirement was removed or the license exception became applicable. No public comments were received on this provision, and BIS is adopting paragraph (i) as proposed.

Since August 21, 2001, the Export Administration Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 15, 2012 (77 FR 49699, August 16, 2012), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

Rulemaking Requirements

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provisions of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This final rule involves information collections previously approved by the OMB under control number 0694-0088, “Multi-Purpose Application”, which carries a burden hour estimate of 45.8 minutes to prepare and submit form BIS-748, which involves requirements in connection with Authorization VEU. BIS revised the burden hour estimate shown for the 0694-0088 collection by two minutes to include the notification requirement proposed in this rule. This revision does not represent a significant increase in burden hours for submitting information under the collection.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The basis for the certification was published in the preamble to the proposed rule and is not repeated here. BIS received no comments or new information regarding the certification. Therefore, a final regulatory flexibility analysis is not required and none has been prepared.

(g)Notification requirement.Exporters and reexporters shipping under Authorization VEU and persons transferring (in-country) under Authorization VEU are required to provide the VEUs to which they are shipping or transferring notice of the shipment or transfer. Such notification must be conveyed to the VEU in writing and must include a list of the VEU-authorized contents of the shipment or transfer and a list of the ECCNs under which the VEU-authorized items in the shipment or transfer are classified, aswell as a statement that the items are being, will be, or were shipped or transferred pursuant to Authorization VEU. Notification of the export, reexport or transfer (in-country) to the VEU must be made within a timeframe agreed to in writing by the VEU and the person exporting, reexporting or transferring (in-country). The VEU and the person exporting, reexporting or transferring (in-country) must agree to the notification timeframe prior to the initial shipment or transfer under Authorization VEU. Depending on the agreement between the VEU and the person exporting, reeexporting or transferring (in-country), a notification may be for individual shipments or for multiple shipments. Exporters, reexporters and VEUs are required to maintain the notifications they send or receive in accordance with their recordkeeping requirements.

(h)Termination of Conditions on VEU Authorizations.VEUs that are subject to item-specific conditions and have received items subject to such conditions under Authorization VEU are no longer bound by the conditions associated with the items if the items no longer require a license for export or reexport to the PRC or India, as applicable, or become eligible for shipment under a license exception to the destination. Items that become eligible for a License Exception are subject to the terms and conditions of the applicable License Exception and the restrictions in § 740.2 of the EAR. Items that become eligible for export without a license and that remain subject to the EAR may only be exported, reexported, transferred (in-country) or disposed of in accordance with the requirements of the EAR. Termination of VEU conditions does not relieve a validated end-user of its responsibility for violations that occurred prior to the availability of a license exception or prior to the removal of license requirements.

(i)Records.Records of items that were shipped under Authorization VEU prior to the removal of a license requirement or the availability of a license exception remain subject to the review requirements of paragraph (f)(2) of this section on and after the date that the license requirement was removed or the license exception became applicable.

National Environmental Satellite, Data and Information Service (NESDIS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

ACTION:

Final rule.

SUMMARY:

In this final rule, NESDIS establishes a new schedule of fees for the sale of its data, information, and related products and services to users. NESDIS is revising the fee schedule that has been in effect since 2011 to ensure that the fees accurately reflect the costs of providing access to the environmental data, information, and related products and services. NESDIS is authorized under 15 U.S.C. 1534 to assess fees, up to fair market value, for access to environmental data, information, and products derived from, collected, and/or archived by NOAA. Other than depreciation, costs to upgrade computer hardware and software systems will not be included in the fees charged to users. NESDIS is updating its schedule of fees for access to NOAA Environmental Data, Information, and Related Products and Services as costs of providing access have changed since 2011.

NESDIS maintains some 1,300 data bases containing over 2,400 environmental variables at three National Data Centers and seven World Data Centers. These centers respond to over 2,000,000 requests for these data and products annually from over 70 countries. This collection of environmental data and products is growing rapidly, both in size and sophistication, and as a result the associated costs have increased.

Users have the ability to access the data offline, online and through the NESDISe-Commerce System (NeS) online store.Our ability to provide these data, information, products and services depends on user fees.

New Fee Schedule

The new fee schedule lists both the current fee charged for each item and the new fee to be charged to users that will take effect beginning January 31, 2013. The schedule applies to the listed services provided by NESDIS on or after this date, except for products and services covered by a subscription agreement in effect as of this date that extends beyond this date. In those cases, the increased fees will apply upon renewal of the subscription agreement or at the earliest amendment date provided by the agreement.

NESDIS will continue to review the user fees periodically, and will revise such fees as necessary. Any future changes in the user fees and their effective date will be announced through notice in theFederal Register.

Classification

This rule has been determined to be not significant for purposes of E.O. 12866. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation are inapplicable because this rule falls within the public property exception of subparagraph (a)(2) of section 553, as it is limited only to the assessment of fees, per 15 U.S.C. 1534, that accurately reflect the costs of providing access to publicly available environmental data, information, and related products. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no Regulatory Flexibility Analysis is required and none has been prepared.

List of Subjects in 15 CFR Part 950

Organization and functions (Government agencies).

Michael H. Abreu,Chief, Financial Officer (CFO/CAO).

For the reasons set forth above, 15 CFR part 950 is amended as follows:

PART 950—ENVIRONMENTAL DATA AND INFORMATION1. The authority citation for part 950 continues to read as follows:Authority:

This document contains correcting amendments to the temporary regulations (TD 9564), which were published in theFederal Registeron Tuesday, December 27, 2011, relating to guidance regarding deduction and capitalization of expenditures related to tangible property. These amendments revise the general asset account regulations to provide the time and manner of making a general asset account election. The amendatory instructions of TD 9564 inadvertently redesignated paragraphs (m)(2) and (m)(3) for the general asset account regulations as in effect before TD 9564 as paragraphs (l)(2) and (l)(3) for the general asset account regulations as amended by TD 9564. These correcting amendments will affect all taxpayers that make a general asset account election.

The regulations that are the subject of these corrections are under section 168 of the Internal Revenue Code.

Need for Correction

As published on December 27, 2011 (76 FR 81060), TD 9564 contains errors which may prove to be misleading and are in need of clarification.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

Correction of Publication

Accordingly, 26 CFR part 1 is amended by making the following correcting amendments.

PART 1—INCOME TAXESParagraph 1.The authority citation for part 1 continues to read as follows:Authority:

26 U.S.C. 7805 * * *

Section 1.168(i)-1 also issued under 26 U.S.C. 168(i)(4). * * *

Par. 2.Section 1.168(i)-0 is amended by revising the entry in the table of contents for paragraph (m) of § 1.168(i)-1 to read as follows:§ 1.168(i)-0Table of contents for the general asset account rules.§ 1.168(i)-1General asset accounts.

(m) [Reserved]. For further guidance, see the entry for § 1.168(i)-1T(m).

(2)Time for making election.The election to apply this section shall be made on the taxpayer's timely filed (including extensions) income tax return for the taxable year in which the assets included in the general asset account are placed in service by the taxpayer.

(3)Manner of making election.In the year of election, a taxpayer makes the election under this section by typing or legibly printing at the top of the Form 4562, “GENERAL ASSET ACCOUNT ELECTION MADE UNDER SECTION 168(i)(4),” or in the manner provided for on Form 4562 and its instructions. The taxpayer shall maintain records (for example, “General Asset Account #1—all 1995 additions in asset class 00.11 for Salt Lake City, Utah facility”) that identify the assets included in each general asset account, that establish the unadjusted depreciable basis and depreciation reserve of the general asset account, and that reflect the amount realized during the taxable year upon dispositions from each general asset account. (But see section 179(c) and § 1.179-5 for the recordkeeping requirements for section 179 property.) The taxpayer's recordkeeping practices should be consistently applied to the general asset accounts. If Form 4562 is revised or renumbered, any reference in this section to that form shall be treated as a reference to the revised or renumbered form.

On December 11, 2012, the Coast Guard published in theFederal Registeran interim temporary final rule establishing a safety zone around the Gilmerton Bridge center span barge. Inadvertently, this rule included an error in the inclement weather date of the safety zone. This document corrects that error.

DATES:

This rule will be effective from January 7, 2013 through January 16, 2013. The rule is scheduled to be enforced from 6:00 a.m. on January 7, 2013 through January 11, 2013, with inclement weather dates of January 12, 2013 through January 16, 2013.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2012-0642 and are available online by going tohttp://www.regulations.gov,inserting USCG-2012-0642 in the “Search” box, and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

On December 11, 2012, the Coast Guard published in theFederal Registeran interim temporary final rule establishing a safety zone around the Gilmerton Bridge center span barge (77 FR 73541). Inadvertently, this rule included an error in the enforcement dates of the safety zone.

As stated in theFederal Registerpublication of the interim temporary final rule, the rule is effective from January 7 through January 16, 2013. That publication listed the enforcement dates of the rule beginning at 6:00 a.m. on January 7, 2013 through January 11, 2013, with inclement weather dates of January 12, 2013 through January 16, 2013. However, due to a clerical error, the regulatory text of the rule stated that the regulation will be enforced starting at 6 a.m. on January 3, 2012 through January 7, 2013 with inclement weather dates of January 8, 2013 through January 12, 2013.

Upon publication of the temporary interim final rule in theFederal Register, the Coast Guard became aware of the errors in the text relating to the enforcement period. This notice corrects those errors by restoring the correct enforcement dates.

The Coast Guard is establishing a temporary security zone on the waters south of Kapoho Point and a nearby channel in Kailua Bay within the Honolulu Captain of the Port (COTP) Zone. This security zone is necessary to ensure the safety of the President of the United States and his family members.

DATES:

This rule is effective from 6 a.m. (HST) on December 17, 2012, through 10 p.m. (HST) on January 6, 2013.

ADDRESSES:

Documents indicated in this preamble as being available in the docket USCG-2012-1038 are available online by going tohttp://www.regulations.gov,inserting USCG-2012-1038 in the “Keyword” box, and then clicking “Search”. They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective less than 30 days after publication in theFederal Register. The details of the President's intended travel to Hawaii were not made available to the Coast Guard in sufficient time to issue a notice of proposed rulemaking. Due to the need for immediate action, the restriction of vessel traffic is necessary to protect the President and his family members; therefore, a 30-day notice period is impracticable. Delaying the effective date would be contrary to the security zone's intended objectives of protecting high-ranking officials, mitigating potential terroristic acts and enhancing public and maritime safety and security. Publishing a Notice of Proposed Rulemaking (NPRM) and delaying the effective date would be contrary to the public interest since the occasion would occur before a notice-and-comment rulemaking could be completed, thereby jeopardizing the safety of the President of the United States, members of his family members, and other senior government officials. The COTP finds that this temporary security zone needs to be effective by December 17, 2012, to ensure the safety of the President of the United States and members of his official party visiting the Kailua Bay area on the eastern coast of Oahu, Hawaii.

Background and Purpose

From December 17, 2012, through January 6, 2013, the President of the United States and his family members plan to visit near the Kailua Bay shoreline on Oahu, Hawaii. This position is located adjacent to U.S. navigable waters in the Honolulu Captain of the Port Zone. The Coast Guard is establishing this security zone to ensure the safety of the President of the United States and his family members.

Discussion of Temporary Final Rule

This temporary final rule is effective from 6 a.m. HST on December 17, 2012 through 10 p.m. HST on January 6, 2013. The security zone area is locatedwithin the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10) and covers all U.S. navigable waters in the Kailua Bay on the west side of a line connecting Kapoho Point and continuing at a bearing of 240° (true) to the southwestern corner of Kailuana Loop; as well as the nearby channel from its entrance at Kapoho Point to a point 150-yards to the southwest of the N. Kalaheo Avenue Road Bridge. This zone extends from the surface of the water to the ocean floor. This zone will include the navigable waters of the channel beginning at point 21°24′56″ N, 157°44′58″ W, then extending to 21°25′26″ N, 157°44′21″ W (Kapoho Point) including all the waters to the west of a straight line to 21°25′11″ N, 157°43′34″ W (Kailuana Loop), and then extending back to the original point 21°24′56″ N, 157°44′58″ W.

Two (2) yellow buoys and a shore-side marker will be placed in proximity of the security zone along the security zone boundary and one (1) orange boom will be placed at the channel boundary southwest of the N. Kalaheo Avenue Road Bridge as visual aids for mariners and the public to approximate the zone. An illustration of the security zone will be made available onwww.regulations.govin docket for this rulemaking, USCG-2012-1038.

In accordance with the general regulations in 33 CFR part 165, Subpart D, no person or vessel will be permitted to transit into or remain in the zone except for authorized support vessels, aircraft and support personnel, or other vessels authorized by the Captain of the Port. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the zone. Vessels, aircraft, or persons in violation of this rule would be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the limited duration of the zone, the limited geographic area affected by it, and the lack of commercial vessel traffic affected by the zone.

2. Impact on Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, all of which are small entities: the owners or operators of six jet-ski and para-sailing companies. These companies will only be affected during the arrival and departure of the President of the United States through Honolulu International Airport. Notice to enforce the security zone is not provided to the Coast Guard more than 12 hours before the President arrives or departs.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on small entities. This security zone would not have a significant economic impact on these small entities for the following reasons: this security zone will be activated, and thus subject to enforcement, for six hours for the President's arrival and for six hours for his departure. Once the Coast Guard is notified of the need to enforce the security zone, all six of the affected jet-ski and para-sailing companies will be contacted and made aware of the security zone enforcement. Additionally, marine advisories will be issued to notify mariners of the enforcement of the security zone. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule will economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking.

If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Scott O. Whaley at (808) 522-8264 ext. 352. The Coast Guard will not retaliate against small entities that question or complain about this temporary final rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This regulation establishes one security zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated underADDRESSES.

(a)Location.The following area, within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10), from the surface of the water to the ocean floor is a temporary security zone: All waters in Kailua Bay to the west of a line beginning at Kapoho Point and thence southwestward at a bearing of 240° (true) to the shoreline at the southeastern corner of Kailuana Loop; as well as the nearby channel from its entrance at Kapoho Point to a point 150-yards to the southwest of the N. Kalaheo Avenue Road Bridge. This zone extends from the surface of the water to the ocean floor. This zone will include the navigable waters of the channel beginning at point 21°24′56″ N, 157°44′58″ W, then extending to 21°25′26″ N, 157°44′21″ W (Kapoho Point) including all the waters to the west of a straight line to 21°25′11″ N, 157°43′34″ W (Kailuana Loop), and then extending back to the original point 21°24′56″ N, 157°44′58″ W.

(b)Effective period.This section is effective from 6 a.m. HST on December 17, 2012, through 10 p.m. HST on January 6, 2013.

(c)Regulations.The general regulations governing security zones contained in 33 CFR 165.33, subpart D, apply to the security zone created by this temporary final rule.

(1) All persons are required to comply with the general regulations governing security zones found in 33 CFR part 165.

(2) Entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port Honolulu.

(3) Persons desiring to transit the security zones identified in paragraph (a) of this section may contact the Captain of the Port at Command Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 842-2624 or on VHF channel 16 (156.8 Mhz) to seek permission to transit the zones. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port Honolulu or his designated representative and proceed at the minimum speed necessary to maintain a safe course while within the zone.

(4) The U.S. Coast Guard may be assisted in the patrol and enforcement of the zones by Federal, State, and local agencies.

(d)Notice of enforcement.The Captain of the Port Honolulu will cause notice of the enforcement of the security zone described in this section to be made by verbal broadcasts and written notice to mariners and the general public.

(e)Definitions.As used in this section,designated representativemeans any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Honolulu to assist in enforcing the security zones described in paragraph (a) of this section.

The United States Patent and Trademark Office (Office) is revising the rules of practice in patent cases to implement the micro entity provision of the Leahy-Smith America Invents Act (AIA). Certain patent fees set or adjusted under the fee setting authority in the AIA will be reduced by seventy-five percent for micro entities. The Office isrevising the rules of practice to set out the procedures pertaining to claiming micro entity status, paying patent fees as a micro entity, notification of loss of micro entity status, and correction of payments of patent fees paid erroneously in the micro entity amount. In a separate rulemaking, the Office is in the process of proposing to set or adjust patent fees under the Leahy-Smith America Invents Act, including setting fees for micro entities with a seventy-five percent reduction. The Office has sought to address the concerns of its stakeholders as expressed in the public comment, and plans to seek additional public comment on the micro entity provisions after the Office and the public have gained experience with the micro entity procedures in operation. The Office will pursue further improvements to the micro entity procedures in light of the public comment and its experience with the micro entity procedures.

Executive Summary: Purpose:The AIA provides that: (1) The Office may set or adjust any patent fee, provided that the aggregate revenue generated by patent fees recovers only the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents (including administrative costs); and (2) most fees set or adjusted under this authority are reduced by fifty percent for small entities and by seventy-five percent for micro entities. The AIA also adds a new section to Title 35 of the United States Code that defines a “micro entity.” The rules of practice currently have provisions pertaining to small entity status, as the patent laws provided a small entity discount prior to the Leahy-Smith America Invents Act. This final rule revises the rules of practice to implement the “micro entity” provisions added by the Leahy-Smith America Invents Act.

Summary of Major Provisions:The Office is adding a provision to the rules of practice pertaining to micro entity status. The provision sets out the requirements to qualify as a micro entity tracking the statutory requirements for a micro entity set forth in section 10 of the Leahy-Smith America Invents Act. The provision also sets out procedures relating to micro entity status that largely track the regulatory requirements and procedures in 37 CFR 1.27 for small entity status. These new procedures pertain to claiming micro entity status, paying patent fees as a micro entity, notifying the Office of loss of micro entity status, and correcting payments of patent fees paid erroneously in the micro entity amount. The procedures for claiming micro entity status require the filing of a certification of entitlement to micro entity status. The Office is developing forms (paper and electronic) for use by members of the public to provide a certification of micro entity status. The procedures for paying fees as a micro entity provide that a micro entity certification need only be filed once in an application or patent, but that a fee may be paid in the micro entity amount only if the applicant or patentee is still entitled to micro entity status on the date the fee is paid. The procedures pertaining to notifying the Office of loss of micro entity status and correcting payments of patent fees paid erroneously in the micro entity amount track the corresponding small entity provisions for notifying the Office of loss of small entity status and correcting payments of patent fees paid erroneously in the small entity amount.

Costs and Benefits:This rulemaking is not economically significant as that term is defined in Executive Order 12866 (Sept. 30, 1993).

Background:The AIA was enacted into law on September 16, 2011.SeePublic Law 112-29, 125 Stat. 283 (2011). Section 10(a) of the AIA provides that the Office may set or adjust by rule any patent fee established, authorized, or charged under title 35, United States Code, provided that aggregate patent fees recover only the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents (including administrative costs).See125 Stat. at 316. Section 10(b) of the AIA provides that “the fees set or adjusted under [section 10(a)] for filing, searching, examining, issuing, appealing, and maintaining patent applications and patents shall be reduced by 50 percent with respect to the application of such fees to any small entity that qualifies for reduced fees under [35 U.S.C.] 41(h)(1) * * *, and shall be reduced by 75 percent with respect to the application of such fees to any micro entity as defined in [35 U.S.C.] 123.”See125 Stat. at 316-17. The patent laws provided in 35 U.S.C. 41(h) for small entities prior to the Leahy-Smith America Invents Act. Section 10(g) of the AIA adds a new 35 U.S.C. 123 to define a “micro entity.”See125 Stat. at 318-19.

35 U.S.C. 123(a) provides one basis under which an applicant may establish micro entity status. 35 U.S.C. 123(d) provides another basis under which an applicant may establish micro entity status. Each will be discussed in turn.

35 U.S.C. 123(a) provides that the term “micro entity” means an applicant who makes a certification that the applicant: (1) Qualifies as a small entity as defined in 37 CFR 1.27; (2) has not been named as an inventor on more than four previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications for which the basic national fee under 35 U.S.C. 41(a) was not paid; (3) did not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census; and (4) has not assigned, granted, or conveyed, and is not under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census.See125 Stat. at 318. 35 U.S.C. 123(a) provides one basis under which an applicant may establish micro entity status.

The Office will indicate the income level that is three times the median household income for the calendar year most recently reported by the Bureau of the Census (the income threshold set forth in 35 U.S.C. 123(a)(3) and (a)(4)) on its Internet Web site, with its Independent Inventor resource information, and on the Office's certification of micro entity status (gross income basis) form (Form PTO/SB/15A). The Office will also make available resources to micro entities to help navigate the new micro entity procedures.

35 U.S.C. 123(b) provides that an applicant is not considered to be named on a previously filed application for purposes of 35 U.S.C. 123(a)(2) if the applicant has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application as the result of the applicant's previous employment.See id.

35 U.S.C. 123(c) provides that if an applicant's or entity's gross income in the preceding calendar year is not in United States dollars, the average currency exchange rate, as reported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant's or entity's gross income exceeds the threshold specified in 35 U.S.C. 123(a)(3) or (4).See125 Stat. at 319.

35 U.S.C. 123(d) provides that a micro entity shall also include an applicant who certifies that: (1) The applicant's employer, from which the applicant obtains the majority of the applicant's income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or (2) the applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application to such an institution of higher education.See id.As explained earlier, 35 U.S.C. 123(a) provides one basis under which an applicant may establish micro entity status, and 35 U.S.C. 123(d) provides another basis under which an applicant may establish micro entity status.

35 U.S.C. 123(e) provides that in addition to the limits imposed by this section, the Director has the discretion to impose income limits, annual filing limits, or other limits on who may qualify as a micro entity pursuant to this section if the Director determines that such additional limits are reasonably necessary to avoid an undue impact on other patent applicants or owners or are otherwise reasonably necessary and appropriate. 35 U.S.C. 123(e) also provides that at least three months before any limits proposed to be implemented pursuant to 35 U.S.C. 123(e) take effect, the Director shall inform the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate of any such proposed limits.See id.

The micro entity provisions of 35 U.S.C. 123 are currently in effect. However, no patent fee is currently eligible for the seventy-five percent micro entity reduction as no patent fee has yet been set or adjusted under section 10 of the Leahy-Smith America Invents Act. The Office is in the process of proposing to set or adjust patent fees under section 10 of the AIA in a separate rulemaking.See Setting and Adjusting Patent Fees,77 FR 55028 (Sept. 6, 2012). The fees set or adjusted by the Office under section 10 of the AIA for filing, searching, examining, issuing, appealing, and maintaining a patent application and patent will be reduced by: (1) Fifty percent for an applicant or patentee who establishes small (but not micro) entity status in the patent application or patent; and (2) seventy-five percent for an applicant or patentee who establishes micro entity status in the patent application or patent.

The Office plans to rely upon the applicant's certification of micro entity status (except where it conflicts with the information contained in the Office's records, such as where Office records indicate that the applicant is named as an inventor on more than four previously filed and unassigned nonprovisional patent applications) and will not require any additional documents from the applicant concerning the applicant's entitlement to claim micro entity status. This practice is similar to small entity practice where the Office generally does not question a claim of entitlement to small entity status.See37 CFR 1.27(f);see also Manual of Patent Examining Procedure§ 509.03 (8th ed. 2001) (Rev. 9, Aug. 2012) (MPEP).

The Office does not plan to provide advisory opinions on whether a particular entity is entitled to claim micro entity status.SeeMPEP § 509.03. The Office, however, is providing the following information concerning procedures for micro entity status under 35 U.S.C. 123:

35 U.S.C. 123 uses the term “applicant” throughout, which was virtually synonymous with “inventor” on September 16, 2011 (the date of enactment of the AIA as well as the effective date of 35 U.S.C. 123). 35 U.S.C. 118, however, as amended effective on September 16, 2012, by Section 4 of the AIA, now permits an application to be made by a person to whom the inventor has assigned or is under an obligation to assign the invention. In addition, a person who otherwise shows sufficient proprietary interest in the matter may make an application for patent on behalf of and as agent for the inventor. Thus, 35 U.S.C. 118 now allows a person other than the inventor to file an application as the applicant if the inventor has assigned or is under an obligation to assign the invention to the person or if the person shows sufficient proprietary interest in the matter. Note also that as of March 16, 2013, 35 U.S.C. 100 will be amended to provide new and specific definitions of the terms “inventor,” “joint inventor,” and “coinventor.”

35 U.S.C. 123 does not explicitly preclude an assignee-applicant under 35 U.S.C. 118 from claiming micro entity status under 35 U.S.C. 123(a) or (d), although some provisions of 35 U.S.C. 123(a) and (d) refer to an applicant who is a natural person inventor rather than a juristic entity.See35 U.S.C. 123(a)(2) (provides that a micro entity applicant under 35 U.S.C. 123(a) must not have “been named as an inventor on more than 4 previously filed patent applications”) and 123(d)(1) (provides that the term micro entity includes an applicant who certifies that “the applicant's employer, from which the applicant obtains the majority of the applicant's income, is an institution of higher education” as defined by section 101(a) of the Higher Education Act of 1965). In addition, 35 U.S.C. 123(a), (b) and (d) specifically refer to a situation in which the applicant has assigned rights in the invention to an assignee.See35 U.S.C. 123(a)(4) (provides that a micro entity applicant under 35 U.S.C. 123(a) must not have “assigned, granted, or conveyed, and is not under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity” exceeding a specified gross income); 35 U.S.C. 123(b) (provides that an applicant is not considered to be named on a previously filed application for purposes of 35 U.S.C. 123(a)(2) if “the applicant has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application as the result of the applicant's previous employment”); and 35 U.S.C. 123(d)(2) (provides that the term micro entity includes an “applicant [who] has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular applications” to an institution of higher education as defined by section 101(a) of the Higher Education Act of 1965). Finally, the legislative history of 35 U.S.C. 123 includes a reference to micro entities as inventors and not the assignees of inventors.SeeH.R. Rep 112-98 at 50 (2011) (describing micro entities as “a group of inventors” and “truly independent inventors”). Nevertheless, 35 U.S.C. 123 does not explicitly preclude an assignee-applicant under 35 U.S.C. 118 from claiming micro entity status for an application under 35 U.S.C. 123(a) or 123(d), provided there is compliance with the applicable micro entity criteria. Each applicant must qualify for micro entity status, and any other party holding rights in the application must qualify for small entity status.See37 CFR 1.29 (h). Note that a party who qualifies for micro entity status necessarily qualifies for small entity status, as under 37 CFR 1.29 amicro entity must first qualify as a small entity under 37 CFR 1.27.

An “institution of higher education,” as that term is used in 35 U.S.C. 123(d), is defined in the Higher Education Act of 1965 (20 U.S.C. 1001(a)). Section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001) provides that: “For purposes of this chapter, other than subchapter IV, the term `institution of higher education' means an educational institution in any State that—(1) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of section 1091(d)(3) of this title; (2) is legally authorized within such State to provide a program of education beyond secondary education; (3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary; (4) is a public or other nonprofit institution; and (5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.” Section 103 of the Higher Education Act of 1965 (20 U.S.C. 1003) provides “the term `State' includes, in addition to the several States of the United States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and the Freely Associated States” and that the Freely Associated States means the “Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.”

The Office is setting out in the rules of practice the requirements for micro entity status and procedures for claiming micro entity status, paying patent fees as a micro entity, notifying the Office of loss of micro entity status, and correcting payments of patent fees paid erroneously in the micro entity amount. The Office is also developing forms for use by members of the public to provide a certification of micro entity status. The procedures track the corresponding provisions in 37 CFR 1.27 and 1.28 for small entities, except where the small entity procedure is not appropriate for micro entity status under the provisions of 35 U.S.C. 123. For example, 35 U.S.C. 123 requires a certification as a condition for an applicant to be considered a micro entity. Thus, the process in 37 CFR 1.27(c)(3) for establishing small entity status by payment of certain fees in the small entity amount cannot be made applicable to establishing micro entity status, and the process in 37 CFR 1.28(a) for a refund based upon subsequent establishment of small entity status is not applicable where there is subsequent establishment of micro entity status. In addition, 35 U.S.C. 123(a)(3) and (a)(4) require that the income level be met for the calendar year preceding the calendar year in which the applicable fee is paid. Thus, the provision in 37 CFR 1.27(g)(1) that the applicant need only determine continued eligibility for small entity status for issue and maintenance fee payments, but can pay intervening fees at small entity rate without determining whether still entitled to small entity status, cannot be made applicable to payment of patent fees as a micro entity.

Discussion of Specific Rules

The following is a discussion of the amendments to Title 37 of the Code of Federal Regulations, Part 1.

Since 35 U.S.C. 123(a) through (d) specify the requirements to qualify as a micro entity, the provisions in §§ 1.29(a) through (d) generally track the provisions of 35 U.S.C. 123(a) through (d).

Section 1.29(a) implements the provisions of 35 U.S.C. 123(a), and includes reference to inventors or joint inventors where appropriate. Section 1.29(a) provides that an applicant claiming micro entity status under 35 U.S.C. 123(a) must certify that: (1) The applicant qualifies as a small entity as defined in § 1.27; (2) neither the applicant nor the inventor nor a joint inventor has been named as the inventor or a joint inventor (see 35 U.S.C. 100) on more than four previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications for which the basic national fee under 35 U.S.C. 41(a) was not paid; (3) neither the applicant nor the inventor nor a joint inventor, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census; and (4) neither the applicant nor the inventor nor a joint inventor has assigned, granted, or conveyed, nor is under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census.See also§ 1.29(h) (each applicant must qualify for micro entity status, and each other party holding rights in the invention must qualify for small entity status).

Section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)) provides that: “[e]xcept as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, fringe benefits, and similar items; (2) Gross income derived from business; (3) Gains derived from dealings in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust.” The median household income for calendar year 2011 (the year most recently reported by the Bureau of the Census) was $50,054.See Income, Poverty, and Health Insurance Coverage in the United States in 2011at pages 5 and 31 (Table A-1) (Sept. 2012). Thus, the income level specified in §§ 1.29(a)(3) and (a)(4) (three times the median household income) is $150,162 for calendar year 2011 (the year most recently reported by the Bureau of the Census).

If an application names more than one applicant or inventor, each applicant and each inventor must meet the requirements of § 1.29(a) for the applicants to file a micro entity certification under § 1.29(a) in the application. It would not be appropriateto file a micro entity certification under § 1.29(a) for the application if there were more than one applicant or inventor and not all of the applicants and inventors qualified as micro entities under 35 U.S.C. 123(a):e.g.,(1) an applicant or inventor exceeded the gross income levels; (2) an applicant or inventor had more than four other nonprovisional applications; or (3) an applicant or inventor had assigned, granted, or conveyed the application or was under an obligation to do so, to an entity that exceeds the gross income levels. Additionally, the income level requirement in 35 U.S.C. 123(a)(3) applies to each applicant's and inventor's income separately (i.e.,the combined gross income of all of the applicants and inventors need not be below the income level in 35 U.S.C. 123(a)(3)). Further, the assignment requirement in § 1.29(a)(4) applies to each applicant and inventor (i.e.,if an applicant or inventor assigns or is obligated to assign the invention to more than one assignee (e.g.,half interest in the invention to two assignees), each of the assignees must meet the income limit specified in § 1.29(a)(4)). Note also that in this context an inventor ordinarily should qualify as a small entity under §§ 1.29(a)(1) and 1.27(a)(1). Under § 1.27(a)(1), an inventor generally is a small entity and retains such status even if the inventor assigns some rights to another small entity. Similarly, to obtain micro entity status, § 1.29(h) requires that any non-applicant assignee be a small entity.

Section 1.29(b) implements the provisions of 35 U.S.C. 123(b). Section 1.29(b) provides that an applicant, inventor, or joint inventor is not considered to be named on a previously filed application for purposes of § 1.29(a)(2) if the applicant, inventor, or joint inventor has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application as the result of the applicant's, inventor's, or joint inventors previous employment.

Section 1.29(c) implements the provisions of 35 U.S.C. 123(c). Section 1.29(c) provides that if an applicant's, inventor's, joint inventor's, or entity's gross income in the preceding calendar year is not in United States dollars, the average currency exchange rate, as reported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant's, inventor's, joint inventor's, or entity's gross income exceeds the threshold specified in § 1.29(a)(3) or (a)(4). The Internal Revenue Service reports the average currency exchange rate (Yearly Average Currency Exchange Rates) on its Internet Web site (http://www.irs.gov/businesses/small/international/article/0,,id=206089,00.html).

Section 1.29(d) implements the provisions of 35 U.S.C. 123(d). Section 1.29(d) provides that an applicant claiming micro entity status under 35 U.S.C. 123(d) must certify that: (1) The applicant qualifies as a small entity as defined in § 1.27; and (2)(i) the applicant's employer, from which the applicant obtains the majority of the applicant's income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or (ii) the applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application to such an institution of higher education. To the extent that 35 U.S.C. 123(d) (unlike 35 U.S.C. 123(a)) does not expressly require that an applicant qualify as a small entity under § 1.27, the Office is invoking its authority under 35 U.S.C. 123(e) to expressly require that a party claiming micro entity status via 35 U.S.C. 123(d) qualify as a small entity under § 1.27. The legislative history of 35 U.S.C. 123 refers to micro entities as a subset of small entities, namely, “truly independent inventors.”SeeH.R. Rep 112-98 at 50 (“[t]he Committee was made aware, however, that there is likely a benefit to describing—and then accommodating—a group of inventors who are even smaller [than small entities], in order to ensure that the USPTO can tailor its requirements, and its assistance, to the people with very little capital, and just a few inventions, as they are starting out. This section of the Act defines this even smaller group—the micro-entity—that includes only truly independent inventors”). Thus, permitting an applicant who does not qualify as a small entity to take advantage of the benefits of micro entity status via 35 U.S.C. 123(d) would be inconsistent with the purposes of micro entity provisions of 35 U.S.C. 123. The statute and its legislative history do not, for example, contemplate a for-profit, large entity applicant becoming a “micro entity” (and thus obtaining a 75 percent discount) merely by licensing or assigning some interest (even merely a nominal or miniscule interest) to an institution of higher education. Accordingly, the Office has determined that requiring all micro entities to qualify as small entities is reasonably necessary and appropriate to ensure that applicants who do not qualify as a small entity do not inappropriately attempt to take advantage of micro entity status.See also§ 1.29(h) (each applicant must qualify for micro entity status, and each other party holding rights in the invention must qualify for small entity status).

Section 1.29(e) provides that micro entity status must be established in an application in by filing a certification in writing that complies with either § 1.29(a) or § 1.29(d) and that is signed in compliance with § 1.33(b). Section 1.29(e) also contains provisions for a micro entity that correspond to the provisions of § 1.27(c)(4) for a small entity. Section 1.29(e) provides that: (1) Status as a micro entity must be specifically established by an assertion in each related, continuing, and reissue application in which status is appropriate and desired; (2) status as a small or micro entity in one application or patent does not affect the status of any other application or patent, regardless of the relationship of the applications or patents; and (3) the refiling of an application under § 1.53 as a continuation, divisional, or continuation-in-part application (including a continued prosecution application under § 1.53(d)), or the filing of a reissue application, requires a new certification of entitlement to micro entity status for the continuing or reissue application.

Section 1.29(f) contains provisions for a micro entity that correspond to the provisions of § 1.27(d) for a small entity. Section 1.29(f) provides that a fee may be paid in the micro entity amount only if it is submitted with, or subsequent to, the submission of a certification of entitlement to micro entity status.

Section 1.29(g) contains provisions for a micro entity that correspond to the provisions of § 1.27(e) for a small entity. Section 1.29(g) provides that a certification of entitlement to micro entity status need only be filed once in an application or patent, and that micro entity status, once established, remains in effect until changed pursuant to § 1.29(i). However, a fee may be paid in the micro entity amount only if status as a micro entity as defined in § 1.29(a) or (d) is appropriate (which requires that status as a small entity is also appropriate) on the date the fee is being paid. Thus, while an applicant is not required to provide a certification of entitlement to micro entity status with each fee payment once micro entity status has been established in an application, the applicant must still be entitled to micro entity status to pay a fee in the micro entity amount at thetime of all payments of fees in the micro entity amount.

For micro entity status under 35 U.S.C. 123(a), the applicant must determine that the applicant and each inventor or joint inventor still meet the applicable conditions of 35 U.S.C. 123(a) and § 1.29(a) to claim micro entity status. For example, the applicant must determine that neither the applicant nor inventor nor joint inventor has had a change in gross income that exceeds the gross income threshold in 35 U.S.C. 123(a)(3) (a new determination must be made each year because gross income may change from year to year, and micro entity status is based upon gross income in the calendar year preceding the calendar year in which the applicable fee is being paid). In addition, the applicant must determine that neither the applicant nor inventor nor joint inventor has made, or is obligated by contract or law to make, an assignment, grant, or conveyance to an entity not meeting the gross income threshold in 35 U.S.C. 123(a)(4), and that no new inventor or joint inventor has been named in the application who does not meet the conditions specified in 35 U.S.C. 123(a) and § 1.29(a)). For micro entity status under 35 U.S.C. 123(d), the applicant must determine that each applicant and inventor still complies with 35 U.S.C. 123(d) and § 1.29(d) (e.g.,still obtains the majority of his or her income from an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). Section 1.29(g) also provides that where an assignment of rights or an obligation to assign rights to other parties who are micro entities occurs subsequent to the filing of a certification of entitlement to micro entity status, a second certification of entitlement to micro entity status is not required.

Section 1.29(h) contains provisions for a micro entity that correspond to the provisions of § 1.27(f) for a small entity. Section 1.29(h) provides that prior to submitting a certification of entitlement to micro entity status in an application, including a related, continuing, or reissue application, a determination of such entitlement should be made pursuant to the requirements of § 1.29(a) or 1.29(d). Section 1.29(h) also indicates that each applicant must qualify for micro entity status under § 1.29(a) or 1.29(d), and that any other party holding rights in the application must qualify for small entity status under § 1.27. As discussed previously, a party who qualifies for micro entity status necessarily qualifies for small entity status, as under § 1.29(a)(1) and (d)(1) a micro entity must first qualify as a small entity under § 1.27. Section 1.29(h) also indicates that the Office will generally not question certification of entitlement to micro entity status that is made in accordance with the requirements of § 1.29.

Section 1.29(i) contains provisions for a micro entity that correspond to the provisions of § 1.27(g)(2) for a small entity. Section 1.29(i) provides that notification of a loss of entitlement to micro entity status must be filed in the application or patent prior to paying, or at the time of paying, any fee after the date on which status as a micro entity as defined in § 1.29(a) or 1.29(d) is no longer appropriate. The notification that micro entity status is no longer appropriate must be signed by a party identified in § 1.33(b). Payment of a fee in other than the micro entity amount is not sufficient notification that micro entity status is no longer appropriate.

Section 1.29(i) further provides that a notification that micro entity status is no longer appropriate will not be treated as a notification that small entity status is also no longer appropriate unless it also contains a notification of loss of entitlement to small entity status under § 1.27(f)(2). Thus, an applicant or patentee who files a notification that micro entity status is no longer appropriate will be treated as a small entity by default unless the notification also contains a notification of loss of entitlement to small entity status under § 1.27(f)(2).

Section 1.29 finally provides that once a notification of a loss of entitlement to micro entity status is filed in the application or patent, a new certification of entitlement to micro entity status is required to again obtain micro entity status.

Section 1.29(j) contains provisions for a micro entity that correspond to the provisions of § 1.27(h) for a small entity. Section 1.29(j) provides that any attempt to fraudulently establish status as a micro entity, or pay fees as a micro entity, shall be considered as a fraud practiced or attempted on the Office, and that establishing status as a micro entity, or paying fees as a micro entity, improperly, and with intent to deceive, shall be considered as a fraud practiced or attempted on the Office.

Section 1.29(k) contains provisions for a micro entity that correspond to the provisions of § 1.28(c) for a small entity. Section 1.28(c) permits an applicant or patentee to correct the erroneous payment of a patent fee in the small entity amount if status as a small entity was established in good faith, and fees as a small entity were paid in good faith.See DH Tech. Inc.v.Synergystex Int'l Inc.,154 F.3d 1333 (Fed. Cir. 1998). Section 1.29(k) provides that if: (i) An applicant or patentee establishes micro entity status in an application or patent in good faith; (ii) the applicant or patentee pays fees as a micro entity in the application or patent in good faith; and (iii) applicant or patentee later discovers that such micro entity status either was established in error, or that the Office was not notified of a loss of entitlement to micro entity status as required by § 1.29(i) through error, the error will be excused upon compliance with the separate submission and itemization requirements of § 1.29(k)(1) and the deficiency payment requirement of § 1.29(k)(2).

Section 1.29(k)(1) provides that any paper submitted under § 1.29(k) must be limited to the deficiency payment (all fees paid in error) required for a single application or patent. Section 1.29(k)(1) provides that where more than one application or patent is involved, separate submissions of deficiency payments (e.g.,checks) and itemizations are required for each application or patent. Section 1.29(k)(1) also provides that the paper must contain an itemization of the total deficiency payment and include the following information: (1) Each particular type of fee that was erroneously paid as a micro entity, (e.g.,basic statutory filing fee, two-month extension of time fee) along with the current fee amount for a small or non-small entity; (2) the micro entity fee actually paid, and the date on which it was paid; (3) the deficiency owed amount (for each fee erroneously paid); and (4) the total deficiency payment owed, which is the sum or total of the individual deficiency owed amounts as set forth in § 1.29(k)(2).

Section 1.29(k)(2) provides that the deficiency owed, resulting from the previous erroneous payment of micro entity fees, must be paid. The deficiency owed for each previous fee erroneously paid as a micro entity is the difference between the current fee amount for a small entity or non-small entity, as applicable, on the date the deficiency is paid in full and the amount of the previous erroneous micro entity fee payment. The total deficiency payment owed is the sum of the individual deficiency owed amounts for each fee amount previously and erroneously paid as a micro entity. This corresponds to the procedure for fee deficiency payments based upon the previous erroneous payment of patent fees in the small entity amount.See§ 1.28(c)(2)(i) (“[t]he deficiency owed for each previous fee erroneously paid as a small entity is the difference between the current full fee amount (for non-small entity) on the date the deficiency is paidin full and the amount of the previous erroneous (small entity) fee payment”).

Section 1.29(k)(3) provides that if the requirements of §§ 1.29(k)(1) and (k)(2) are not complied with, such failure will either be treated at the option of the Office as an authorization for the Office to process the deficiency payment and charge the processing fee set forth in § 1.17(i), or result in a requirement for compliance within a one-month non-extendable time period under § 1.136(a) to avoid the return of the fee deficiency payment.

Section 1.29(k)(4) provides that any deficiency payment (based on a previous erroneous payment of a micro entity fee) submitted under § 1.29(k) will be treated as a notification of a loss of entitlement to micro entity status under § 1.29(i).

Comments and Responses to Comments:The Office published a notice on May 30, 2012, proposing to change the rules of practice to implement the micro entity provisions of the AIA.See Changes to Implement Micro Entity Status for Paying Patent Fees,77 FR 31806 (May 30, 2012). The Office received twenty-seven written comments (from intellectual property organizations, industry, law firms, individual patent practitioners, and the general public) in response to this notice. There were some comments received that related to practice before the agency but not related to the proposed changes to the rules of practice to implement the micro entity provisions of the AIA, and these comments have been forwarded to the Office of Innovation Development for further consideration. The Office is always interested to hear feedback from the public concerning ways in which it can assist small and independent inventors. The comments germane to the proposed changes to the rules of practice to implement the micro entity provisions of the AIA and the Office's responses to the comments follow:

Comment 1:One comment stated that there are several instances in 35 U.S.C. 123 and proposed § 1.29 where the term “applicant” is inapplicable to an organization and must really be referring to the inventor(s) (e.g.,a certification that “applicant” has not been named as an “inventor” in more than four previously filed applications, references to applicant's previous employment or employer). One comment indicated that the term “applicant” should be used in an interchangeable manner so as to mean either the inventor(s) or a company to which the patent application is assigned (i.e., the rules should refer to “applicant or inventor”) in view of the AIA's change to 35 U.S.C. 118. That comment further indicated, however, that the ability to vary from the statute “may be limited.” One comment similarly indicated that the final rules should replace all instances of “applicant” and “applicant's” with “inventor” and “inventor's” in § 1.29(a) (second instance), (b), (c), (d)(1), (d)(2)(i), and (d)(2)(ii) in view of the AIA's change to 35 U.S.C. 118. One comment stated that in the case of university inventions, the university typically is the applicant and this creates anomalies in proposed § 1.29(d), since the institution (university) logically cannot make the certifications required under § 1.29(d)(2)(i) and (d)(2)(ii) (that the employer from which the university obtains the majority of its income is an institution of higher education as defined by section 101(a) of the Higher Education Act of 1965, or that the university itself has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application).

Response:The Office specifically invited public comment in the notice of proposed rulemaking on the issue of whether the term “inventor” should be used in place of “applicant” at any instance in the proposed micro entity rules.See Changes to Implement Micro Entity Status for Paying Patent Fees,77 FR at 31808. The Office agrees that some, though not all, provisions of 35 U.S.C. 123 refer to a situation where an inventor is the applicant. The micro entity provisions of 35 U.S.C. 123 were enacted as part of the AIA, which also revised the patent laws to provide a specific definition of the term “inventor” and to change who may be the applicant for a patent.See125 Stat. at 285 (defining “inventor”) and 293-97 (changing the patent laws to distinguish between who may apply for a patent as the applicant and who must be named as the inventor);see also35 U.S.C. 100; 35 U.S.C. 118. The Office does not consider it appropriate either to amend the language of 35 U.S.C. 123 as incorporated into the corresponding provisions of § 1.29 or to somehow view the terms “applicant” and “inventor” as interchangeable in all instances under 35 U.S.C. 123.See Brownv.Gardner,513 U.S. 115, 118 (1994) (presumption that a given term is used to mean the same thing throughout a statute). As discussed previously, while some of the provisions in 35 U.S.C. 123(a) and (d) refer to an inventor-applicant, 35 U.S.C. 123 does not explicitly preclude an assignee-applicant under 35 U.S.C. 118 from claiming micro entity status under 35 U.S.C. 123(a) or (d), provided there is compliance with the applicable micro entity criteria by each applicant. However, each applicant must qualify for micro entity status, and any other party holding rights in the application must qualify for small entity status.See37 CFR 1.29(h).

Comment 2:One comment stated that it is possible that the legislative intent of 35 U.S.C. 123(a)(2) was that an applicant should satisfy this criterion so long as the applicant has fewer than four previously filed applications in which micro entity fees were paid. One comment stated that the four application limit under 35 U.S.C. 123(a)(2) should apply only to applications filed within the past twenty years or so. One comment stated that it would make sense for the term “inventor” in § 1.29(a)(2) to refer to an applicant who has had the opportunity to claim micro entity status in four previously filed patent applications. One comment indicated that § 1.29(a)(2) should be amended to provide that if an application is entitled to micro entity status, then continuation and divisional applications of that parent application should normally be entitled to micro entity status without counting the parent application or any parallel filed continuing or divisional patent applications in the same patent family toward the four application limit.

Response:Section 1.29(a)(2) tracks the provisions of 35 U.S.C. 123(a)(2) with the clarification to reference non-applicant inventors and joint inventors. 35 U.S.C. 123(a)(2) provides a certification that the applicant,inter alia,“has not been named as an inventor on more than 4 previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications * * * for which the basic national fee under 35 U.S.C. 41(a) was not paid.” This provision refers to when an inventor-applicant has been named as an inventor in a previous application, including as one in a group of joint inventors.See35 U.S.C. 100. An applicant that is not an inventor would plainly not violate this criteria. Moreover, this provision has been clarified to refer to an inventor or joint inventor who is not the applicant. 35 U.S.C. 123(a)(2) by its express terms does not, however, provide for exceptions to this four-application limit suggested by the comments. In addition, while 35 U.S.C. 123(e) authorizes the Office to place additional limits on who may qualify as a micro entity under 35 U.S.C. 123, it does not authorize theOffice to remove limitations contained in 35 U.S.C. 123.

Comment 3:One comment suggested expanding the scope of the § 1.29(b) exception to applications counted toward the four application limit in § 1.29(a)(2) by including applications assigned to the inventor's current employer when the invention is outside the current employer's scope of employment with the inventor.

Response:Section 1.29(b) tracks the provisions of 35 U.S.C. 123(b) with the clarification to reference non-applicant inventors and joint inventors. 35 U.S.C. 123(b) provides that an applicant is not considered to be named on a previously filed application for purposes of 35 U.S.C. 123(a)(2) if the applicant has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application “as the result of applicant's previous employment.” Thus, the exception in 35 U.S.C. 123(b) by its express terms does not apply to applications assigned to a current employer. In addition, as discussed previously, while 35 U.S.C. 123(e) authorizes the Office to place additional limits on who may qualify as a micro entity under 35 U.S.C. 123, it does not authorize the Office to remove limitations contained in 35 U.S.C. 123.

Comment 4:One comment noted that the Office has indicated that it will publish the income level that is three times the median household income for the calendar year most recently reported by the Bureau of the Census, but that 35 U.S.C. 123(a) (and § 1.29(a)) require that applicants use the median household income data for “the calendar year preceding the calendar year in which the applicable fee is being paid.” The comment expressed concern that median household income data for a given year is not reported by the Bureau of the Census until the succeeding year. One comment suggested that § 1.29(a)(3) be amended to provide that an applicant may rely on his or her most recently filed income tax return regardless of whether the most recently filed tax return accounted for the previous calendar year's gross income.

Response:Section 1.29(a)(3) tracks the provisions of 35 U.S.C. 123(a)(3) with the clarification to reference non-applicant inventors and joint inventors. 35 U.S.C. 123(a)(3) provides that each inventor's gross income “in the calendar year preceding the calendar year in which the applicable fee is being paid” must not exceed “three times the median household income for that preceding calendar year as most recently reported by the Bureau of the Census.” 35 U.S.C. 123(a)(3) does not provide for an applicant to simply rely on his or her most recently filed income tax return if the most recently filed tax return does not pertain to the calendar year preceding the calendar year in which the applicable fee is being paid. The Office will post on its Internet Web site the U.S. dollar amount that equals three times the median household income as most recently reported by the Bureau of the Census. Thus, the Office's Internet Web site will contain the U.S. dollar amount that equals three times the median household income as most recently reported by the Bureau of the Census as provided for in § 1.29(a)(3) and 35 U.S.C. 123(a)(3).

Comment 5:One comment requested guidance as to what effect marital status has on “gross income” in terms of § 1.29(a)(3), and whether the inventor's tax return is filed jointly or separately changes the amount of “gross income” for purposes of meeting the requirement of proposed § 1.29(a)(3). The comment also indicated that in community property states, the law may be construed such that the inventor/applicant has assigned his or her rights in part to the spouse, as a matter of law. Another comment stated that marital status of an individual applicant may have an impact on the assignment or ownership rights in an invention and the gross income of the applicant, and that it may require an opinion from an accountant or tax attorney with respect to the applicant's income.

Response:The Office reads the “gross income” requirement contained in 35 U.S.C. 123(a)(3) and § 1.29(a)(3) with respect to a married person as applying to the amount of income the person would have reported as gross income if that person were filing a separate tax return (which includes properly accounting for that person's portion of interest, dividends, and capital gains from joint bank or brokerage accounts), regardless of whether the person actually filed a joint return or a separate return for the relevant calendar year. Additionally, the Office does not consider a spouse's ownership interest in a patent application or patent arising by operation of residence in a community property state as falling within the ambit of 35 U.S.C. 123(a)(4) and § 1.29(a)(4) because the spouse's ownership interest arises by operation of state law, rather than an assignment, grant, conveyance, or obligation to assign, grant, or convey.

Comment 6:One comment questioned the situation where the applicant's income is not in U.S. dollars and the applicable currency exchange rate is applied to determine the applicant's gross income in U.S. dollars in accordance with § 1.29(c), whether the applicant's gross income in terms of U.S. dollars should be compared to three times the median household income for the preceding calendar year in the United States, or should be compared to the median household income for the preceding calendar year in the country in which the applicant obtained income.

Response:In all cases, the inventor's gross income in the previous calendar year must be compared to the U.S. dollar amount equaling three times the median household income as most recently reported by the Bureau of the Census (which will be posted on the Office's Internet Web site) at the time the applicable fee is being paid in order to meet the gross income requirement of § 1.29(a)(3).

Comment 7:One comment suggested that the language “that calendar year” in proposed § 1.29(c) should be changed to “the preceding calendar year” to clarify that applicants whose income is not in U.S. dollars must apply the currency exchange rate from the preceding calendar year when calculating income in U.S. dollars in order to determine whether the proposed § 1.29(a)(3) “gross income” requirement is met.

Comment 8:One comment indicated that foreign applicants should be directed to make a “good faith attempt” to estimate their gross income in terms of U.S. tax law.

Response:35 U.S.C. 123(c) provides that if an applicant's or entity's gross income in the preceding calendar year is not in United States dollars, the average currency exchange rate, as reported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant's or entity's gross income exceeds the threshold specified in 35 U.S.C. 123(a)(3) or (4). 35 U.S.C. 123 does not provide any alternative basis, such as a good faith estimation as suggested by the comment, for determining whether an applicant or entity meets the gross income requirement of 35 U.S.C. 123(a)(3). For an applicant or entity whose previous calendar year's gross income was received partially in U.S. dollars and partially in non-United States currency, the gross income amount in non-United States currency must be converted into U.S. dollars in accordance with § 1.29(c) and then added to the gross incomeamount in U.S. dollars to determine whether the applicant or entity meets the gross income requirement of § 1.29(a)(3).

Comment 9:One comment suggested that the definition of micro entity status should be broadened to benefit even more small inventors than those who meet the requirements of 35 U.S.C. 123(a).

Response:The legislative history includes a statement that Congress developed the micro entity provision to benefit truly independent inventors, people with very little capital and just a few inventions, who are just starting out.SeeH.R. Rep 112-98 at 50. Small entity inventors who do not meet the micro entity requirements of 35 U.S.C. 123 may still claim small entity status and receive the fifty percent small entity fee reduction. In any event, as discussed previously, while 35 U.S.C. 123(e) authorizes the Office to place additional limits on who may qualify as a micro entity under 35 U.S.C. 123, it does not authorize the Office to remove limitations contained in 35 U.S.C. 123 or expand the scope of 35 U.S.C. 123 to include more small entities.

Comment 10:Several comments objected to the requirement under § 1.29(d)(1) that in order to qualify for micro entity status under § 1.29(d), the applicant must qualify as a small entity as defined in § 1.27 in addition to meeting one of the requirements under § 1.29(d)(2)(i) or (d)(2)(ii).

Response:35 U.S.C. 123(e) provides that in addition to the limits imposed by 35 U.S.C. 123, the Director may, in the Director's discretion, impose income limits, annual filing limits, or other limits on who may qualify as a micro entity pursuant to this section if the Director determines that such additional limits are reasonably necessary to avoid an undue impact on other patent applicants or owners or are otherwise reasonably necessary and appropriate. The Office has determined that requiring all micro entities to qualify as small entities (§ 1.29(d)(1)) is reasonably necessary and appropriate to ensure that applicants who do not qualify as a small entity do not inappropriately attempt to take advantage of micro entity status. As discussed in the notice of proposed rulemaking, the legislative history of 35 U.S.C. 123 includes a statement that micro entity status is directed to a subset of small entities, namely, “truly independent inventors.”SeeH.R. Rep 112-98 at 50.

Comment 11:Several comments indicated that § 1.29(d)(2)(ii) should provide that the rights transferred or owed to an institution of higher education should be substantial. The comments indicated that institutions of higher education are generally non-practicing entities or that applicants could engage in sham transfers of a de minimus interest to an institution of higher education, and suggested the Office use its authority under 35 U.S.C. 123(e) to ensure the transfer of rights is for a substantial purpose. One comment indicated that micro entity status by a grant of rights to an institution of higher education under § 1.29(d)(2)(ii) should not be available to an institution of higher education and that without such a limitation, institutions of higher education could simply grant rights to each other and thereby qualify their patent for micro entity status.

Response:As discussed previously, the Office is requiring that all micro entities qualify as small entities (§ 1.29(d)(1)) to ensure that applicants who do not qualify as a small entity do not inappropriately attempt to take advantage of micro entity status. This requires that any person or entity claiming micro entity status not have assigned, granted, conveyed, or licensed, and be under no obligation under contract or law to assign, grant, convey, or license, any rights in the invention to any person, concern, or organization which would not qualify for small entity status as a person, small business concern, or nonprofit organization.See§ 1.27(a). The Office plans to closely monitor the percentage of applicants claiming small entity status under 35 U.S.C. 123(d) and will propose additional limits under the authority provided in 35 U.S.C. 123(e) if it appears that a substantial number of applicants are engaging in sham transactions with institutions of higher education to obtain micro entity status.

Comment 12:One comment indicated that 35 U.S.C. 123(d) is unclear as to whether it was intended to cover a separate non-profit corporation, research foundation, or other institution that is legally separate from an institution of higher education but whose stated mission is to represent that institution of higher education, to act on its behalf, and/or commercialize the intellectual property of that institution of higher education. The comment suggested that a research foundation should be treated as a qualifying institution of higher education for purposes of micro entity status if the research foundation is acting on behalf of a university which is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965. Another comment suggested that the Office consider expanding the scope of § 1.29(d) to include technology transfer organizations whose primary purpose is to facilitate the commercialization of technologies developed by one or more institutions of higher education as defined by section 101(a) of the Higher Education Act of 1965. Another comment suggested that micro entity status be made available to applicants whose inventions are co-owned with Federal Government research laboratories and that patent applications on inventions made solely or jointly by Federal laboratory personnel should be considered in the same manner as applications made solely by personnel at academic research laboratories. Another comment suggested amending § 1.29(d) to extend the definition of “institution of higher education” to include certain nonprofit scientific or educational organizations that are not institutions of higher education “as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))” as required by 35 U.S.C. 123(d). Another comment suggested that the Office interpret “institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))” as it appears in 35 U.S.C. 123(d) to include institutions of higher education set forth in subsection (b) of 20 U.S.C. 1001, thus making micro entity status available to institutions that grant only graduate degrees if they otherwise qualify as institutions of higher education under 20 U.S.C. 1001(a).

Response:35 U.S.C. 123(d) provides that a micro entity shall also include an applicant who certifies that: (1) The applicant's employer, from which the applicant obtains the majority of the applicant's income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or (2) the applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular applications to such an institution of higher education. Consistent with the discussion above and in the notice of proposed rulemaking about the statutory terms “applicant” and “inventor,” note that the statutory criteria in 35 U.S.C. 123(d) ordinarily would not be met by an institution of higher education that is itself an assignee-applicant. Also, while 35 U.S.C. 123(e) authorizes the Office to place additional limits on who may qualify as a micro entity under 35 U.S.C. 123, it does not authorize the Office to remove limitations contained in 35 U.S.C. 123 such as to expand the scope of 35 U.S.C. 123(d) to include aseparate, non-profit corporation, research foundation, technology transfer organization, Federal Government research laboratory, other non-profit scientific or educational organization, institution of higher education as defined in section 101(b) of the Higher Education Act of 1965, or other institution that is legally separate from an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 as suggested by the comments. An entity or institution must meet the definition of an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 for an applicant employed by, or who has assigned or is under an obligation to assignee to, the entity or institution, to be eligible for micro entity status under 35 U.S.C. 123(d).

Comment 13:Several comments indicated that the proposed rules show a bias in favor of institutions of higher education and against independent inventors because an independent inventor has to meet certain criteria to be entitled to micro entity status.

Response:Both independent inventors under 35 U.S.C. 123(a) and those employed by or under a legal or contractual obligation to assign, grant, or convey an interest in an application to an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 under 35 U.S.C. 123(d), must meet certain criteria to be eligible for micro entity status. Specifically, the applicant must qualify as a small entity as defined in § 1.27. In addition, as to 35 U.S.C. 123(d) either the applicant's employer, from which the applicant obtains the majority of the applicant's income, must be an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), or the applicant must have assigned, granted, conveyed, or be under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application to such an institution of higher education. The income and application filing criteria specified in § 1.29(a) tracks the criteria in 35 U.S.C. 123(a).

Response:Micro entity status is available to any applicant (foreign or domestic alike) who meets the requirements of 35 U.S.C. 123 and § 1.29. Notably, 35 U.S.C. 123(d) provides that an institution must meet the definition of an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 for micro entity status to be obtained based upon the applicant's employment at or the applicant's assignment or obligation to the institution. One criteria of the definition of “institution of higher education” set forth in section 101(a) of the Higher Education Act of 1965 is that the institution must be located in a “State.” Section 103 of the Higher Education Act of 1965 provides that the term “State” as used in section 101(a) “includes the several States of the United States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, American Samoa, the United States Virgin Islands, and the Freely Associated States” and that the Freely Associated States means the “Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.”

Comment 15:Several comments urged deletion of the requirement in § 1.29(e) that micro entity status be specifically established by a new certification in each related continuing and reissue application. One comment indicated that unless the Office removes the provision in proposed § 1.29(g) that a fee may be paid in the micro entity amount only if status as a micro entity is appropriate on the date the fee is paid, the Office should remove the requirement in proposed § 1.29(e) that status as a micro entity must be specifically established in each related, continuing and reissue application in which status is appropriate and desired. One comment stated that § 1.29(e) contains an error in that contrary to its language, status as a micro entity in one application does affect the status of other applications. The commenter, however, suggests retaining language in § 1.29(e) stating that micro entity status must be specifically established in each continuing and divisional application in which status is appropriate and desired.

Response:The Office shares the concerns of the comments that the small entity and micro entity regulations and procedures be as simple as possible. For this reason, the Office is making the micro entity provisions as consistent with the small entity provisions as possible, including the provisions pertaining to claiming small entity status in related continuing and reissue applications.See§ 1.27(c)(4). In addition, 35 U.S.C. 123 requires that the applicant make a certification under 35 U.S.C. 123(a) or (d) to qualify for micro entity status. An applicant's ability to meet the requirements in 35 U.S.C. 123(a) or (d) may change over time. For example, from a first application to a related continuing or reissue application, an applicant's gross income (35 U.S.C. 123(a)(3)) and employment (35 U.S.C. 123(d)(1)) may change, and the number of applications naming the applicant as an inventor (35 U.S.C. 123(a)(2)) will change with the filing of a related continuing or reissue application. Therefore, the Office is concerned about permitting micro entity status to automatically carry over into a related continuing or reissue application without the certification required by 35 U.S.C. 123(a) or (d). Finally, while being named as an inventor in other applications may affect an applicant's ability to claim micro entity status in an application, status as a micro entity in one application does not affect the status of other applications. Finally, as discussed previously, the Office plans to seek additional public comment on the micro entity provisions after the Office and the public have gained experience with the micro entity procedures in operation, and will pursue further improvements to the micro entity procedures in light of the public comment and its experience with the micro entity procedures.

Comment 16:One comment stated that § 1.29 is unclear as to who must sign the micro entity certification in applications with more than one applicant. The comment suggested that § 1.29 be amended to make clear that each applicant must meet the requirements of 35 U.S.C. 123(a) or (d) for the applicants to file a micro entity certification in the application. Further, the comment suggested that §§ 1.29(a) and (d) be revised to state that “each applicant so establishing such status must certify that that applicant” meets all the requirements in order to establish micro entity status. One basis given for this suggestion is that joint applicants will generally not be privy to each other's private financial information, and should not be required to submit a certification as to the qualification of their joint applicants.

Response:Section 1.29(e) provides that a micro entity status certification must be signed in compliance with § 1.33(b). Section 1.33(b) requires that amendments and other papers filed in the application be signed by: (1) A patent practitioner of record; (2) a patent practitioner not of record who acts in a representative capacity under the provisions of § 1.34; or (3) the applicant (§ 1.42). Section 1.33(b) further provides that all papers submitted on behalf of a juristic entity must be signed by a patent practitioner unless otherwise specified. If the application names more than one inventor and the joint inventors are the applicant under § 1.42(a), a micro entity status certification must be signed by: (1) A patent practitioner of record; (2) apatent practitioner not of record who acts in a representative capacity under the provisions of § 1.34; or (3) all of the inventors.

Comment 17:One comment suggested amending § 1.29(f) to include language permitting the micro entity certification to be filed in response to a notice of fee deficiency mailed by the Office.

Response:Certification of micro entity status can be made at any stage of prosecution, or at any time before or with payment of a maintenance fee after the patent issues. However, a fee may be paid in the micro entity amount only if it is submitted with, or subsequent to, the submission of a certification of entitlement to micro entity status.

Comment 18:Several comments argued that there should be no need to recertify small entity status if micro entity status is lost, because the applicant had to certify small entity status to qualify as a micro entity and the applicant should continue to qualify for small entity status after losing micro entity status.

Response:Section 1.29(i) as adopted in this final rule provides that a notification that micro entity status is no longer appropriate will not be treated as a notification that small entity status is also no longer appropriate unless it also contains a notification of loss of entitlement to small entity status under § 1.27(f)(2). An applicant or patentee who files a notification that micro entity status is no longer appropriate will be treated as a small entity by default unless the notification also contains a notification of loss of entitlement to small entity status under § 1.27(f)(2), thus minimizing burdens on small entity applicants and patentees. An applicant or patentee who is no longer a micro entity or a small entity must provide both a notification under § 1.29(i) of loss of entitlement to micro entity status and a notification under of § 1.27(f)(2) of loss of entitlement to small entity status.

Comment 19:A number of comments indicated that the proposed requirement in § 1.29(g) to determine continued qualification for micro entity status each time a fee is paid was overly burdensome. One comment indicated that this proposed requirement would inevitably lead to additional cost to applicants in prosecuting applications before the Office. Several comments suggested that § 1.29(g) be revised to be similar to small entity practice such that once micro entity status is acquired, fees can continue to be paid in the micro entity amount until the issue fee or any maintenance fee is due, or that micro entity status be permitted to be maintained throughout the calendar year in which micro entity status was established without regard to continued qualification. The comments indicated that an entity that licenses multiple patent applications will need to confirm that each licensee does not have a gross income that exceeds three times the median household income for the preceding calendar year, and that an entity with a patent application naming multiple inventors will need to confirm that each inventor for each application does not have a gross income that exceeds three times the median household income for the preceding calendar year. One comment alternatively suggested that micro entity status be maintained by applicants through the end of a calendar year, even if there has been a change in income status during the calendar year that disqualifies the applicant from a continued claim to micro entity status.

Response:35 U.S.C. 123(a) does not allow for a provision similar to small entity practice under which once micro entity status is acquired, fees can continue to be paid in the micro entity amount until the issue fee or any maintenance fee is due or that micro entity status be maintained throughout the calendar year in which micro entity status was established without regard to continued qualification. 35 U.S.C. 123(a) requires that a micro entity “not [have] been named as an inventor on more than 4 previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications for which the basic national fee under 35 U.S.C. 41(a) was not paid” and “not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding three times the median household income for that preceding calendar year.” 35 U.S.C. 123(a)(2) and (a)(3). Finally, while applicants with complex licensing arrangements may consider confirming the status of each licensee challenging, this is more a function of the complexity of the licensing arrangement than any complexity in the requirement that a fee may be paid in the micro entity amount only if status as a micro entity as defined in § 1.29(a) or § 1.29(d) is appropriate on the date the fee is being paid.

Comment 20:Several comments objected to the statement in proposed § 1.29(h) that “[i]t should be determined that all parties holding rights in the invention qualify for micro entity status.” One comment stated that proposed § 1.29(h) appears to require an opinion that all parties holding rights in the invention qualify for micro entity status. One comment indicated that because “parties” could include an applicant under 35 U.S.C. 118 not qualifying as a micro entity but filing an application on behalf of an inventor qualifying as a micro entity, the statement should be deleted. Another comment indicated that the sentence cited from § 1.29(h) is redundant and/or inconsistent with the statute as 35 U.S.C. 123(a)(4) expressly includes such a limitation whereas 35 U.S.C. 123(d) does not. The comment also indicated that the sentence cited from § 1.29(h) is inconsistent with § 1.29(d) which would otherwise allow any entity that qualifies for small entity status to obtain the benefits of micro entity status by assigning, granting, or conveying, a license or other ownership interest to a qualified institution of higher education. The comment suggested amending the sentence cited from § 1.29(h) by replacing “qualify for micro entity status” with “qualify for small entity status,” or alternatively, replacing the phrase “all parties holding rights to the invention” with “all applicants.” One comment indicated that “invention” is not the equivalent of “application,” and thus the word “invention” in the phrase “all parties holding rights to the invention” should be changed to “application,” or the Office should provide guidance on the meaning of the expression “rights in the invention.”

Response:The Office is revising this provision to indicate that each applicant must qualify for micro entity status under § 1.29(a) or § 1.29(d), and that each other party holding rights in the application must qualify for small entity status under § 1.27. Note that § 1.27(a)(3) provides for small entity status with respect to nonprofit organizations and is applicable to universities or other institutions of higher education.See§ 1.27(a)(3)(ii)(A). 35 U.S.C. 123(e) provides that in addition to the limits imposed by 35 U.S.C. 123, the Director may, in the Director's discretion, impose income limits, annual filing limits, or other limits on who may qualify as a micro entity pursuant to this section if the Director determines that such additional limits are reasonably necessary to avoid an undue impact on other patent applicants or owners or are otherwise reasonably necessary and appropriate. As discussed previously, the Office has determined that requiring all micro entities to qualify as small entities and that all other parties holding rights inthe invention qualify for small entity status is reasonably necessary and appropriate to ensure that applicants who do not qualify as a small entity do not inappropriately attempt to take advantage of micro entity status.

Comment 21:One comment indicated that § 1.29(h) is an advisory opinion, and not a statement of any requirement, and thus should be deleted.

Response:Section 1.29(h) requires that each applicant qualify for micro entity status under § 1.29(a) or § 1.29(d), and that each other party holding rights in the application qualify for small entity status under § 1.27, in order for the applicant to make a certification of entitlement to micro entity status. With respect to the small entity status requirement, § 1.27(a) requires that any person or entity claiming small entity status not have assigned, granted, conveyed, or licensed, and is under no obligation under contract or law to assign, grant, convey, or license, any rights in the invention to any person, concern, or organization which would not qualify for small entity status as a person, small business concern, or nonprofit organization.

Comment 22:Several comments indicated that proposed § 1.29(i) is overly burdensome. One comment indicated that proposed § 1.29(i) would require that possible loss of entitlement to micro entity status be evaluated each time a fee is to be paid. One comment stated that the cost of compliance defeats the Congressional purpose of providing for micro entity status and thus proposed § 1.29(i) should be stricken.

Response:Section 1.29(i) requires only that a notification of a loss of entitlement to micro entity status must be filed in the application or patent prior to paying, or at the time of paying, any fee after the date on which status as a micro entity as defined in § 1.29(a) or § 1.29(d) is no longer appropriate. As discussed previously, § 1.29(g) provides that a fee may be paid in the micro entity amount only if status as a micro entity as defined in § 1.29(a) or § 1.29(d) is appropriate on the date the fee is being paid. Section 1.29(i) provides a necessary step for documentation of the cessation of micro entity status.

Comment 23:One comment suggested that § 1.29(i) be amended to permit payments for entity status other than micro entity as sufficient notification of loss of entitlement to micro entity status, without additional correspondence to the Office.

Response:Office experience with small entity payments is that some small entities will occasionally pay patent fees in the full (non-small entity) amounts inadvertently. If mere payment of fees in the full or small entity amount is treated as a notification of loss of entitlement to micro entity status, a micro entity who inadvertently paid a patent fee in the full or small entity amount will thereafter no longer be treated as a micro entity. This could result in increased costs for entities that are entitled to claim micro entity status, and there would be a lack of clear documentation on whether micro entity status has ceased.

Comment 24:Several comments indicated that proposed § 1.29(j) is vague because the proposed rule does not define what constitutes fraud. The comments indicated that the Office should amend the rule to make clear what would constitute fraud. One comment stated that fraud is a legal conclusion including proof of mental state. One comment stated that some small entities not qualifying for micro entity status under § 1.29(a) may be tempted to marginally align with a university in order to take benefit under § 1.29(d), and requested that the Office clarify whether such a strategy would be considered a fraud, even if the letter of the rules is met. One comment requested guidance on what penalties the Office anticipates enforcing in the event that a fraudulent certification is made.

Response:Section 1.29(j) provides that “[a]ny attempt to fraudulently establish status as a micro entity, or pay fees as a micro entity, shall be considered as a fraud practiced or attempted on the Office,” and that “[i]mproperly, and with intent to deceive, establishing status as a micro entity, or paying fees as a micro entity, shall be considered as a fraud practiced or attempted on the Office.” The language in § 1.29(j) parallels the corresponding small entity provision in § 1.27(h), and thus terms “fraudulently” and “fraud” in § 1.29(j) have the same meaning as the terms “fraudulently” and “fraud” in § 1.27(h). The definition of common law fraud is based on the definition discussed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).See Unitherm Food Systems, Inc.v.Swift-Ekrich, Inc.,375 F.3d 1341, 1358 (Fed. Cir. 2004);In re Spalding Sports Worldwide, Inc.,203 F.3d 800, 807 (Fed. Cir. 2000). Applicants questioning how to resolve close situations or what penalties may result from a fraudulent certification should consider that: (1) The Federal Circuit has noted that an applicant would be “foolish” to claim small entity status if there is the slightest doubt about an applicant's entitlement to claim small entity (DH Tech.,154 F.3d at 1343); (2) depending on future developments in the case law, it is possible that a patent could be held unenforceable as a consequence of a fraud or inequitable conduct relating to a micro entity or small entity certification (this was clearly possible for small entity certifications prior to the Federal Circuit's decision inTherasense, Inc.v.Becton, Dickinson and Co.,649 F.3d 1276 (Fed. Cir. 2011) (see, e.g., Nilssenv.Osram Sylvania, Inc.,504 F.3d 1223 (2007), andUlead Systems, Inc.v.Lex Computer Management Corp.,351 F.3d 1120 (Fed. Cir. 2003)), but the Federal Circuit has not yet decided the question of whether a false declaration of small entity status could constitute inequitable conduct under theTherasensestandard (see Outside the Box Innovations, LLCv.Travel Caddy, Inc.,695 F.3d 1285, 1294 (Fed. Cir. 2012);see also Therasense,649 F.3d at 1299, n.6 (O'Malley, J., concurring in part and dissenting in part)); and (3) there can be further significant penalties for fraud (e.g.,35 U.S.C. 257(e) (provides that the matter shall be referred to the Attorney General if the Director becomes aware that a material fraud on the Office may have been committed in connection with a patent that is the subject of a supplemental examination).

Comment 25:One comment stated that with respect to the provisions relating to fraudulent certification (§§ 1.29(g) through (k)), it would be beneficial to clarify the depth of inquiry which is considered acceptable (e.g.,good faith attempt) for a representative of an applicant to obtain in order to sign a certification. The comment indicated that it would be too burdensome on a practitioner to expect more than obtaining verbal affirmation from an applicant that the applicant meets the guidelines for obtaining micro entity status.

Response:The depth of inquiry required for any paper presented to the Office, including a micro entity status certification, is specified in § 11.18. Specifically, § 11.18(b) provides that by presenting to the Office or hearing officer in a disciplinary proceeding (whether by signing, filing, submitting, or later advocating) any paper, the party presenting such paper, whether a practitioner or non-practitioner, is making two certifications. The first certification is that all statements made therein of the party's own knowledge are true, all statements made therein on information and belief are believed to be true, and all statements made therein are made with the knowledge that whoever, in any matter within the jurisdiction of the Office, knowinglyand willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or knowingly and willfully makes any false, fictitious, or fraudulent statements or representations, or knowingly and willfully makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be subject to the penalties set forth under 18 U.S.C. 1001 and any other applicable criminal statute, and further that violations of the provisions of this section may jeopardize the probative value of the paper.See§ 11.18(b)(1). The second certification is that to the best of the party's knowledge, information and belief, formed after an inquiry reasonable under the circumstances: (1) The paper is not being presented for any improper purpose, such as to harass someone or to cause unnecessary delay or needless increase in the cost of any proceeding before the Office; (2) the other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence, or if specifically so identified, are reasonably based on a lack of information or belief.See§ 11.18(b)(2).

Comment 26:Several comments suggested eliminating the requirement under proposed § 1.29(k) that any deficiency payment include an itemization and an accounting of the total deficiency payment. One comment indicated that proposed § 1.29(k) should be revised to parallel the rule that applies to an error in paying a small entity fee when the large entity fee should have been paid. The comment alternatively proposed that the rules could be amended to require: (1) One base fee for rectifying the failure to correct micro entity status, and (2) an accounting of when the change of status occurred.

Response:The fee deficiency payment provisions of § 1.29(k) track the small entity fee deficiency payment provisions of § 1.28(c). The Office needs the itemization to properly apply the fee deficiency payment so that the Office's records for the application or patent will properly show which fees have been paid for the application or patent and in what amount.

Comment 27:One comment suggested the Office establish a database of the various certification types and permit annual updating of applicant status, rather than individual application status. Another comment suggested that § 1.29 be amended to provide for micro entity status certifications contained in patent application assignments recorded under part 3 of 37 CFR.

Response:The suggestions are not currently feasible as inventor or assignee names are not always stated consistently from application to application (either in application papers or in assignment cover sheets). The suggestions will be considered if the Office moves to adopt a system under which there are unique inventor and applicant-assignee designations.

Comment 28:One comment indicated that many practitioners who have participated in the LegalCORPS Inventor Assistance Program (a pilot patent law pro bono program developed with the support of the Office) have seen first-hand that many inventors qualifying for free legal assistance through the program will not be able to file applications electronically, due in part to being unable to make electronic payments via deposit account or credit card. The comment suggested that the final rule could address this issue by providing for electronic filing of documents along with a written certification by the applicant that any fees associated with that filing are being submitted by check deposited in the U.S. mail on the date of application filing.

Response:Electronic filing remains a viable filing option for micro entities, even if the applicant does not have a deposit account at the Office and even if the applicant does not have sufficient access to credit to enable payment by credit card. Fees may be paid by electronic funds transfer (EFT), which requires nothing more than a checking account. However, before making any payments by EFT, an EFT profile must be created at the Office “Office of Finance On-Line Shopping Page” athttps://ramps.uspto.gov/eram/.To begin, click the link titled “Create or Modify an EFT Profile” on the “Office of Finance On-Line Shopping Page.” It is important that micro entities and other applicants file their applications electronically via EFS-Web in order to avoid the non-electronic filing fee under § 1.10, which is $400 (and $200 for small and micro entities). Additionally, a small or micro entity that files an application in paper (versus electronically via EFS-Web) will not receive the discount (currently $97.00) available only to small entities that file a patent application electronically.

Rulemaking Considerations

A. Regulatory Flexibility Act:For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes in this final rule will not have a significant economic impact on a substantial number of small entities.See5 U.S.C. 605(b). The Office did not receive public comments on this certification.

This final rule revises the rules of practice to allow a subset of small entities—i.e.,micro entities—to pay further reduced fees, namely, a seventy-five percent discount. This final rule sets out procedures pertaining to claiming micro entity status, paying patent fees as a micro entity, notification of loss of micro entity status, and correction of payments of patent fees paid erroneously in the micro entity amount. This final rule maintains the criteria in 35 U.S.C. 123(a) and (d) for entitlement to file a certification of micro entity status (note also the requirement in 37 CFR 1.29(d)(1) that an applicant claim small entity status in compliance with 37 CFR 1.27 in order to claim micro entity status; see also 37 CFR 1.29(h), 35 U.S.C. 123(e)). This rule also includes clarifications under 37 CFR 1.29(a) to refer to non-applicant inventors and joint inventors. The micro entity procedures in this final rule track to the extent feasible the corresponding small entity procedures under 37 CFR 1.27. Thus, the burden to all entities, including small entities, imposed by this final rule is no greater than those imposed by the pre-existing regulations pertaining to claiming small entity status: paying patent fees as a small entity, notification of loss of small entity status, and correction of payments of patent fees paid erroneously in the small entity amount.

Requiring that an applicant claim small entity status in compliance with 37 CFR 1.27 in order to claim micro entity status under 37 CFR 1.29(d)(1) will not have a significant economic impact on a substantial number of small entities. The Office uses the Small Business Administration business size standard for the purpose of paying reduced patent fees in 13 CFR 121.802 as the size standard when conducting an analysis or making a certification under the Regulatory Flexibility Act for patent-related regulations.See Business Size Standard for Purposes of United States Patent and Trademark Office RegulatoryFlexibility Analysis for Patent-Related Regulations,71 FR 67109, 67109 (Nov. 20, 2006). A small entity for purposes of the Regulatory Flexibility Act analysis is a small entity for purposes of paying reduced patent fees. Therefore, requiring in 37 CFR 1.29(d)(1) that an entity claim small entity status in compliance with 37 CFR 1.27 in order to claim micro entity status will preclude only an applicant or patentee who is a large entity (i.e.,not a small entity) from claiming micro entity status.

The Office estimates that a minority percentage of small entity applications will be filed by paying micro entity fees under this final rule. Based upon the data in the Office's Patent Application Locating and Monitoring (PALM) system, of the approximately 2,498,000 nonprovisional patent applications (utility, plant, design, and reissue) and requests for continued examination filed in total over the last five fiscal years, small entity fees were paid in approximately 669,000 (26.8 percent). Thus, an average of approximately 500,000 nonprovisional patent applications and requests for continued examination have been filed each year for the last five fiscal years, with small entity fees being paid in approximately 134,000 of the nonprovisional patent applications and requests for continued examination filed each year.

As indicated above, this rule provides a procedure for small entities to attain a 75 percent reduction in fees as a micro entity, as provided by statute. The procedures for micro entity status track the existing procedures for small entity status. While the rule impacts the entire universe of small entity applications and patents, the rule is necessary for implementing a further reduction in fees, which is entirely beneficial, and no other provision has an economic impact on the affected small entities.

B. Executive Order 12866 (Regulatory Planning and Review):This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

C. Executive Order 13563 (Improving Regulation and Regulatory Review):The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

One comment argued that the rulemaking fails to comply with Executive Order 13563 on the grounds that: (1) The Office did not conduct a burden/benefit analysis which includes realistic professional services fees for patent practitioners, the time involved in understanding and complying with the rule, and the sanctions imposed by rule; (2) proposed 37 CFR 1.29 fails to consider the value to society of university inventions, for which 35 U.S.C. 123(d) seeks to provide specific benefits, and which imposes no limits on how a university might seek to exploit its rights; and (3) proposed 37 CFR 1.29 imposes significant burdens for the affected applicants, and is thus not tailored to impose the least burden on society consistent with obtaining the regulatory objectives.

The Office considered costs and benefits to applicants claiming micro entity status (including universities), as well as to all other applicants and the Office in this rulemaking. Executive Order 13563 reaffirms Executive Order 12866. This rulemaking was deemed by OMB as not economically significant as that term is defined in Executive Order 12866 (Sept. 30, 1993). Therefore, the regulatory analysis provided in section 6(a)(3)(C) of Executive Order 12866 and OMB Circular A-4 is inapplicable to this rulemaking. The Office, however, did conduct the regulatory analysis provided in section 6(a)(3)(C) and OMB Circular A-4 for the related rulemaking to set and adjust patent fees under section 10 of the Leahy-Smith America Invents Act. 37 CFR 1.29 does impose the least burden on society consistent with obtaining the regulatory objectives by permitting an applicant to self-certify entitlement to micro entity status, and does not require any further information or certification from the applicant provided that the applicant remains entitled to micro entity status. In addition, having micro entity procedures which track the pre-existing small entity procedures to the extent practicable is less burdensome than fashioning new micro entity procedures. Finally, while having no requirements would arguably impose the least burden on an entity seeking the benefit of micro (or small) entity status, it would not impose the least burden on society overall and would not obtain the regulatory objectives of creating the beneficial option of micro entity status with a seventy-five percent fee reduction as provided by statute.

Revising the regulations as suggested by the comment would expand the scope of micro entity status beyond what the statute allows. It also would not meet the regulatory objectives of ensuring that a for-profit, large entity applicant not become a “micro entity” (and thus obtaining a seventy-five percent discount) merely by licensing or assigning some interest (nominal or otherwise) to an institution of higher education. The Office received comments (including in response to the section 10 rulemaking) in support of the Office imposing additional requirements under 35 U.S.C. 123(e) to avoid sham licensing agreements for the purpose of improperly claiming micro entity status (as improper micro entity claims would result in higher fees for other applicants). Thus, the narrow requirements imposed by the Office under 35 U.S.C. 123(e) are necessary to avoid abuses of micro entity status, and simply eliminating them in the name of reducing burden would not impose the least burden on society overall and would not obtain the regulatory objectives.

D. Executive Order 13132 (Federalism):This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

E. Executive Order 13175 (Tribal Consultation):This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

F. Executive Order 13211 (Energy Effects):This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

H. Executive Order 13045 (Protection of Children):This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

I. Executive Order 12630 (Taking of Private Property):This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

J. Congressional Review Act:Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801et seq.), the United States Patent and Trademark Office will submit a report containing this final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. In addition, the United States Patent and Trademark Office will inform the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate of any proposed limits under 35 U.S.C. 123(e) at least three months before any limits proposed to be implemented pursuant to 35 U.S.C. 123(e) take effect.

The changes in this final rule are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this final rule is not a “major rule” as defined in 5 U.S.C. 804(2).

K. Unfunded Mandates Reform Act of 1995:The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.See2 U.S.C. 1501et seq.

L. National Environmental Policy Act:This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969.See42 U.S.C. 4321et seq.

M. National Technology Transfer and Advancement Act:The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.

N. Paperwork Reduction Act:The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires that the USPTO consider the impact of paperwork and other information collection burdens imposed on the public. This final rule makes changes to the rules of practice that would impose new information collection requirements involving fee deficiency statements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). Accordingly, the Office submitted a proposed information collection to OMB for its review and approval when the notice of proposed rulemaking was published. The Office also published the title, description, and respondent description of the information collection, with an estimate of the annual reporting burdens, in the notice of proposed rulemaking (See Changes to Implement Micro Entity Status for Paying Patent Fees,77 FR 31812-13).

The Office received one comment on the proposed information collection indicating that the estimate of 3,000 respondents per year was a significant underestimate as every inventor employed outside of large entities will likely be confronted with the various certifications, and that there may be tens of thousands of university professors or university students on work-study who qualify under 35 U.S.C. 123(d).

The information collection requirements discussed in the notice of proposed rulemaking, however, narrowly pertain to the information required for fee deficiency payments based upon the previous erroneous payment of patent fees in the micro entity amount (See Changes to Implement Micro Entity Status for Paying Patent Fees,77 FR 31812). Based upon the number of applicants and patentees who make fee deficiency payments under existing 37 CFR 1.28(c) (about 2,250 per year), the Office believes that 3,000 respondents per year is a reasonable and conservative estimate of the number of applicants and patentees who make fee deficiency payments under 37 CFR 1.28(c) or 1.29(k).

As discussed in the notice of proposed rulemaking, OMB has determined under 5 CFR 1320.3(h) that the certification of micro entity status (e.g.,Form PTO/SB/15A (gross income basis) or Form PTO/SB/15B (institution of higher education basis) does not collect “information” within the meaning of the Paperwork Reduction Act of 1995 (See Changes to Implement Micro Entity Status for Paying Patent Fees,77 FR 31812). The changes adopted in this final rule do not require any further change to the proposed information collection.

Accordingly, the Office has resubmitted the proposed information collection to OMB. The proposed information collection is available at the OMB's Information Collection Review Web site (www.reginfo.gov/public/do/PRAMain).

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number.

(a) To establish micro entity status under this paragraph, the applicant must certify that:

(1) The applicant qualifies as a small entity as defined in § 1.27;

(2) Neither the applicant nor the inventor nor a joint inventor has been named as the inventor or a joint inventor on more than four previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications for which the basicnational fee under 35 U.S.C. 41(a) was not paid;

(3) Neither the applicant nor the inventor nor a joint inventor, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census; and

(4) Neither the applicant nor the inventor nor a joint inventor has assigned, granted, or conveyed, nor is under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census.

(b) An applicant, inventor, or joint inventor is not considered to be named on a previously filed application for purposes of paragraph (a)(2) of this section if the applicant, inventor, or joint inventor has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application as the result of the applicant's, inventor's, or joint inventor's previous employment.

(c) If an applicant's, inventor's, joint inventor's, or entity's gross income in the preceding calendar year is not in United States dollars, the average currency exchange rate, as reported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant's, inventor's, joint inventor's, or entity's gross income exceeds the threshold specified in paragraph (a)(3) or (4) of this section.

(d) To establish micro entity status under this paragraph, the applicant must certify that:

(1) The applicant qualifies as a small entity as defined in § 1.27; and

(2)(i) The applicant's employer, from which the applicant obtains the majority of the applicant's income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or

(ii) The applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application to such an institution of higher education.

(e) Micro entity status is established in an application by filing a micro entity certification in writing complying with the requirements of either paragraph (a) or paragraph (d) of this section and signed in compliance with § 1.33(b). Status as a micro entity must be specifically established in each related, continuing and reissue application in which status is appropriate and desired. Status as a micro entity in one application or patent does not affect the status of any other application or patent, regardless of the relationship of the applications or patents. The refiling of an application under § 1.53 as a continuation, divisional, or continuation-in-part application (including a continued prosecution application under § 1.53(d)), or the filing of a reissue application, requires a new certification of entitlement to micro entity status for the continuing or reissue application.

(f) A fee may be paid in the micro entity amount only if it is submitted with, or subsequent to, the submission of a certification of entitlement to micro entity status.

(g) A certification of entitlement to micro entity status need only be filed once in an application or patent. Micro entity status, once established, remains in effect until changed pursuant to paragraph (i) of this section. However, a fee may be paid in the micro entity amount only if status as a micro entity as defined in paragraph (a) or (d) of this section is appropriate on the date the fee is being paid. Where an assignment of rights or an obligation to assign rights to other parties who are micro entities occurs subsequent to the filing of a certification of entitlement to micro entity status, a second certification of entitlement to micro entity status is not required.

(h) Prior to submitting a certification of entitlement to micro entity status in an application, including a related, continuing, or reissue application, a determination of such entitlement should be made pursuant to the requirements of this section. It should be determined that each applicant qualifies for micro entity status under paragraph (a) or (d) of this section, and that any other party holding rights in the invention qualifies for small entity status under § 1.27. The Office will generally not question certification of entitlement to micro entity status that is made in accordance with the requirements of this section.

(i) Notification of a loss of entitlement to micro entity status must be filed in the application or patent prior to paying, or at the time of paying, any fee after the date on which status as a micro entity as defined in paragraph (a) or (d) of this section is no longer appropriate. The notification that micro entity status is no longer appropriate must be signed by a party identified in § 1.33(b). Payment of a fee in other than the micro entity amount is not sufficient notification that micro entity status is no longer appropriate. A notification that micro entity status is no longer appropriate will not be treated as a notification that small entity status is also no longer appropriate unless it also contains a notification of loss of entitlement to small entity status under § 1.27(f)(2). Once a notification of a loss of entitlement to micro entity status is filed in the application or patent, a new certification of entitlement to micro entity status is required to again obtain micro entity status.

(j) Any attempt to fraudulently establish status as a micro entity, or pay fees as a micro entity, shall be considered as a fraud practiced or attempted on the Office. Improperly, and with intent to deceive, establishing status as a micro entity, or paying fees as a micro entity, shall be considered as a fraud practiced or attempted on the Office.

(k) If status as a micro entity is established in good faith in an application or patent, and fees as a micro entity are paid in good faith in the application or patent, and it is later discovered that such micro entity status either was established in error, or that the Office was not notified of a loss of entitlement to micro entity status as required by paragraph (i) of this section through error, the error will be excused upon compliance with the separate submission and itemization requirements of paragraph (k)(1) of this section and the deficiency payment requirement of paragraph (k)(2) of this section.

(1) Any paper submitted under this paragraph must be limited to the deficiency payment (all fees paid in error) required for a single application or patent. Where more than one application or patent is involved, separate submissions of deficiency payments are required for each application or patent (see § 1.4(b)). The paper must contain an itemization of the total deficiency payment for the single application or patent and include the following information:

(i) Each particular type of fee that was erroneously paid as a micro entity, (e.g.,basic statutory filing fee, two-month extension of time fee) along with the current fee amount for a small or non-small entity, as applicable;

(ii) The micro entity fee actually paid, and the date on which it was paid;

(iii) The deficiency owed amount (for each fee erroneously paid); and

(iv) The total deficiency payment owed, which is the sum or total of the individual deficiency owed amounts as set forth in paragraph (k)(2) of this section.

(2) The deficiency owed, resulting from the previous erroneous payment of micro entity fees, must be paid. The deficiency owed for each previous fee erroneously paid as a micro entity is the difference between the current fee amount for a small entity or non-small entity, as applicable, on the date the deficiency is paid in full and the amount of the previous erroneous micro entity fee payment. The total deficiency payment owed is the sum of the individual deficiency owed amounts for each fee amount previously and erroneously paid as a micro entity.

(3) If the requirements of paragraphs (k)(1) and (2) of this section are not complied with, such failure will either be treated at the option of the Office as an authorization for the Office to process the deficiency payment and charge the processing fee set forth in § 1.17(i), or result in a requirement for compliance within a one-month time period that is not extendable under § 1.136(a) to avoid the return of the fee deficiency payment.

(4) Any deficiency payment (based on a previous erroneous payment of a micro entity fee) submitted under this paragraph will be treated as a notification of a loss of entitlement to micro entity status under paragraph (i) of this section, but payment of a deficiency based upon the difference between the current fee amount for a small entity and the amount of the previous erroneous micro entity fee payment will not be treated as an assertion of small entity status under § 1.27(c). Once a deficiency payment is submitted under this paragraph, a written assertion of small entity status under § 1.27(c)(1) is required to obtain small entity status.

Dated: December 14, 2012.David J. Kappos,Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.[FR Doc. 2012-30674 Filed 12-18-12; 8:45 am]BILLING CODE 3510-16-PENVIRONMENTAL PROTECTION AGENCY40 CFR Part 52[EPA-R04-OAR-2012-0238; FRL-9762-6]Approval and Promulgation of Implementation Plans; South Carolina 110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards; CorrectionAGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule, correction.

SUMMARY:

EPA published in theFederal Registerof August 1, 2012, a final rule approving the State Implementation Plan (SIP) submissions submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (SC DHEC), as demonstrating that the South Carolina SIP met certain requirements of the Clean Air Act (CAA or the Act) for the 1997 annual and 2006 24-hour fine particulate matter (PM2.5) national ambient air quality standards (NAAQS). This rulemaking corrects several errors identified in the August 1, 2012, final rule.

This action corrects inadvertent omissions in the August 1, 2012, final rulemaking and its associated regulatory text section. Specifically, EPA is correcting the final rule to expressly indicate that the South Carolina Code Annotated Sections described in the June 6, 2012, proposed rule are being incorporated into the South Carolina SIP.1See77 FR 33386. The August 1, 2012, final rule also failed to list these code sections in the regulatory text. Accordingly, this rulemaking corrects that inadvertent omission by adding S.C. Code Ann. Sections 8-13-100(31), 8-13-700(A) and (B), and 8-13-730 to the regulatory text of the August 1, 2012, final rule.

1The sections adopted into the SIP are S.C. Code Ann. Sections 8-13-100(31); 8-13-700(A) and (B); and 8-13-730. These sections were adopted into the SIP to satisfy CAA section 128 state board requirements made applicable to South Carolina's infrastructure SIP by section 110(a)(2)(E)(ii) of the CAA. See EPA's June 6, 2012, proposed rulemaking for more information as to how these statutes meet the applicable CAA section 128 requirements. 77 FR 33380, 33386.

In addition, EPA is correcting the footnote on page 45492 of the final rule which inadvertently listed “April 13, 2012,” as the date of South Carolina's SIP revision. The correct date for South Carolina's SIP revision is April 3, 2012. Through today's notice, EPA is hereby correcting the footnote on page 45492 of the August 1, 2012, final rule to reflect the correct date.

Finally, EPA is correcting the statement on page 45493 of the August 1, 2012, final rule that stated “[t]oday's action is not approving any specific rule, but rather making a determination that South Carolina's already approved SIP meets certain CAA requirements.” Today's rule removes this sentence from the August 1, 2012, final rule and replaces it with a sentence that reads: “EPA is making a determination that South Carolina's SIP meets certain CAA requirements.”See77 FR 45492.

EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action is unnecessary because today's action to correct an inadvertent regulatory text omission included with EPA's August 1, 2012, final rule is consistent with the substantive revisions to the South Carolina SIP described in the proposal to approve certain state statues into the South Carolina SIP as addressing the section 110(a)(2)(E)(ii) state board requirements for the 1997 annual and 2006 24-hour PM2.5NAAQS. In addition, EPA can identify no particular reason why the public would be interested in being notified of the correction, or in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the meaning of EPA's analysis or action to approve certain state statues as addressing the state board requirements for the 1997 annual and 2006 24-hour PM2.5NAAQS into the South Carolina SIP. EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided bythe agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's action merely corrects an inadvertent omission for the regulatory text of a prior rulemaking by listing these state statues in the regulatory text for the South Carolina SIP. For these reasons, EPA finds good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely corrects an inadvertent omission for the regulatory text of EPA's August 1, 2012, final rule to approve certain state statues as addressing the state board requirements for the 1997 annual and 2006 24-hour PM2.5NAAQS into the South Carolina SIP, and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). Because this rule merely corrects an inadvertent omission for the regulatory text of EPA's August 1, 2012, final rule to approve certain state statues as addressing the state board requirements for the 1997 annual and 2006 24-hour PM2.5NAAQS into the South Carolina SIP, and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule merely corrects an inadvertent omission for the regulatory text of EPA's August 1, 2012, final rule to approve certain state statues as addressing the state board requirements for the 1997 annual and 2006 24-hour PM2.5NAAQS into the South Carolina SIP, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In addition, this rule does not involve technical standards, thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule also does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.).

The Congressional Review Act, 5 U.S.C. section 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit byFebruary 19, 2013.

Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.SeeCAA section 307(b)(2).

PART 52—[AMENDED]1. The authority citation for part 52 continues to read as follows:Authority:

42 U.S.C. 7401et seq.

Subpart PP—South Carolina2. Section 52.2120(c), is amended by adding by adding in numerical order a new entry for “Ethics Reform Act” at the end of the table to read as follows:§ 52.2120Identification of plan.

(c) * * *

Air Pollution Control Regulations for South CarolinaState citationTitle/subjectState

This order requires the submission of various data to support the continuation of the tolerances for the pesticide, difenzoquat. Pesticide tolerances are established under the Federal Food, Drug, and Cosmetic Act (FFDCA). Following publication of this order, persons who are interested in the continuation of the difenzoquat tolerances must notify the Agency by completing and submitting the required section 408(f) Order Response Form (available in the docket) within 90 days. If the Agency does not receive within 90 days after publication of the final order a section 408(f) Response Form identifying a person who agrees to submit the required data, EPA will revoke the difenzoquat tolerances.

DATES:

This final order is effective December 19, 2012. A section 408(f) Order Response Form must be received on or before March 19, 2013.

ADDRESSES:

EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2012-0441. All documents in the docket are listed in the docket index available athttp://www.regulations.gov.Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket athttp://www.regulations.gov,or, if only available in hard copy, at the OPP Regulatory Public Docket in the Environmental Protection Agency Docket Center (EPA/DC), EPA West Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available athttp://www.epa.gov/dockets.

Submit your section 408(f) Order Response Form, identified by docket identification (ID) number EPA-HQ-OPP-2012-0441, by one of the following methods:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed underFOR FURTHER INFORMATION CONTACT.

B. How can I get electronic access to other related information?

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.To access the harmonized test guidelines referenced in this document electronically, please go tohttp://www.epa.gov/ocsppand select “Test Methods and Guidelines,” which is listed under “Documents related to our mission.”

II. BackgroundA. What action is the agency taking?

In this document EPA is issuing an order requiring the submission of various data to support the continuation of the difenzoquat tolerances at 40 CFR 180.369, under section 408 of FFDCA, 21 U.S.C. 346a. Difenzoquat is not currently registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136et seq.The last FIFRA registration for difenzoquat was canceled in 2010. However, 25 FFDCA tolerances remain for residues of difenzoquat on the following commodities: Barley, cattle, goat, hog, horse, poultry, sheep, and wheat (40 CFR 180.369). Because there are currently no domestic registrations for difenzoquat, these tolerances are referred to as “import tolerances.” It is these tolerances that are addressed by the Data Call-In order.

B. What is the agency's authority for taking this action?

Under section 408(f) of the FFDCA, EPA is authorized to require, by order, submission of data “reasonably required to support the continuation of a tolerance” when such data cannot be obtained under the Data Call-In authority of FIFRA section 3(c)(2)(B), or section 4 of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. 2603. A FFDCA section 408 Data Call-In order may only be issued following publication of notice of the order and a 60-day public comment provision.

A section 408(f) Data Call-In order must contain the following elements:

1. A requirement that one or more persons submit to EPA a notice identifying the person(s) who commit to submit the data required in the order.

2. A description of the required data and the required reports connected to such data;

3. An explanation of why the required data could not be obtained under section 3(c)(2)(B) of FIFRA or section 4 of TSCA.

4. The required submission date for the notice identifying one or more interested persons who commit to submit the required data and the required submission dates for all the data and reports required in the order (21 U.S.C. 346a(f)(1)(C)).

EPA may by order modify or revoke the affected tolerances if any one of the following submissions is not made in a timely manner:

1. A notice identifying the one or more interested persons who commit to submit the data.

2. The data itself.

3. The reports required under a section 408(f) order are not submitted by the date specified in the order (21 U.S.C. 346a(f)(2)).

C. What preliminary steps were taken by EPA prior to issuing this final order?

On July 6, 2012 (77 FR 44181) (FRL-9352-9), EPA issued a proposed Data Call-In order for the pesticide difenzoquat in connection with tolerances for that pesticide under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. The proposed Data Call-In order included the following studies:

III. Summary of Public Comments Received and Agency Response to Comments

EPA received no comments in response to the July 6, 2012,Federal Registernotice announcing the Agency's proposed Data Call-In order for difenzoquat. In addition, the Agency has not received any of the data identified in the proposed order as needed to support the difenzoquat tolerances.

IV. Final Data Call-in Order

Because no comments were submitted on the proposal and the data deficiencies identified in the proposed order remain, EPA is issuing this final Data Call-In order under FFDCA section 408(f)(1)(C) for difenzoquat in the same form as the proposed order and for the reasons set forth in that proposed order. Specifically, this order:

1.Requires notice of intent to submit data.A notice identifying the person or persons who commit to submit the data and reports in accordance with Unit IV.2. must be submitted to EPA if any person wishes to support the difenzoquat tolerances. The notice must be submitted on a section 408(f) Order Response Form which is available in the electronic docket,http://www.regulations.gov,under docket ID number EPA-HQ-OPP-2012-0441.

2.Establishes a deadline for submission of notice identifying data submitters.The notice described in Unit IV.1., identifying data submitters, must be submitted to and received by EPA on or before March 19, 2013. Instructions on methods for responding to this order (referred to in this order as a “section 408(f) Order Response Form”) are set out under theADDRESSESsection above.

3.Describes data and reports required to support continuation of the difenzoquat tolerances, requires submission of those data and reports, and establishes deadlines for submission.The table in this Unit describes the data and reports required to be submitted on difenzoquat under this order and the deadlines for the submission of each study and report. The required submission date is calculated from March 19, 2013. Thus, for example, if EPA generally allows 12 months to complete a study, the required submission date for such a study under this order would be 15 months from the date of publication of the order in theFederal Register. Studies, study protocols, and reports should be submitted to the person listed underFOR FURTHER INFORMATION CONTACT.

EPA provided a description of why the required data could not be obtained under section 3(c)(2)(B) of FIFRA or section 4 of TSCA in the proposed order and relies on that description in this final order.

V. Failure to Submit Notice of Intent to Submit Data or Data and Reports

If, by March 19, 2013 the Agency does not receive a section 408(f) Order Response Form identifying a person who agrees to submit the required data, EPA will revoke the difenzoquat tolerances at 40 CFR 180.369. Such revocation is subject to the objection and hearing procedure in FFDCA section 408(g)(2) but the only material issue in such a procedure is whether a submission required by the order was made in a timely fashion.

Additional events that may be the basis for modification or revocation of difenzoquat tolerances include, but are not limited to the following:

1. No person submits on the required schedule an acceptable protocol report when such report is required to be submitted to the Agency for review.

2. No person submits on the required schedule acceptable data as required by the final order.

VI. Statutory and Executive Order Reviews

This action, which requires the submission of data in support of tolerances in accordance with FFDCA section 408, is in the form of an order and not a rule (21 U.S.C. 346a(f)(1)(C)). Under the Administrative Procedures Act (APA), orders are expressly excluded from the definition of a rule (5 U.S.C. 551(4)). Accordingly, the regulatory assessment requirements imposed on a rulemaking do not apply to this action, as explained further in the following discussion.

Because this order is not a “regulatory action” as that term is defined in Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not subject to review by the Office of Management and Budget (OMB) under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose additional burdens that require approval by OMB under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501et seq.). The information collection activities associated with the order requesting data from any party interested in supporting certain tolerances are already approved by OMB under OMB Control No. 2070-0174, and are identified by EPA ICR No. 2288.01. Burden is defined at 5 CFR 1320.3(b). Under the PRA, an Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in theFederal Register, are listed in 40 CFR part 9, and included on the related collection instrument, or form, if applicable.

C. Regulatory Flexibility Act

Since this order is not a rule under the APA (5 U.S.C. 551(4)), and does not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) do not apply.

D. Unfunded Mandates Reform Act; Executive Order 13132: Federalism; and Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This order requests data from any party interested in supporting certain tolerances and does not impose obligations on any person or entity including States or tribes; nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132 (64 FR 43255, August 10, 1999) and Executive Order 13175 (65 FR 67249, November 9, 2000) do not apply to this order. In addition, this order does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538).

As indicated previously, this action is not a “regulatory action” as defined by Executive Order 12866. As a result, this action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) and Executive Order 13211 (66 FR 28355, May 22, 2001). In addition, this order also does not require any special considerations under Executive Order 12898 (59 FR 7629, February 16, 1994).

F. National Technology Transfer and Advancement Act

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), (15 U.S.C. 272 note).

VII. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801et seq.does not apply because this action is not a rule as that term is defined in 5 U.S.C. 804(3).

This regulation establishes tolerances for residues of propiconazole in or on sugarcane, cane. Syngenta Crop Protection, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES:

This regulation is effective December 19, 2012. Objections and requests for hearings must be received on or before February 19, 2013, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of theSUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0772, is available athttp://www.regulations.govor at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), EPA West Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available athttp://www.epa.gov/dockets.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. How can I file an objection or hearing request?

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0772 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 19, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any CBI) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0772, by one of the following methods:

•Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

•Hand Delivery:To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions athttp://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available athttp://www.epa.gov/dockets.

II. Summary of Petitioned-for Tolerance

In theFederal Registerof November 9, 2011 (Volume 76, FR 69690) (FRL-9325-1), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1F7892) by Syngenta Crop Protection, LLC, P.O. Box 18300 Greensboro, NC 27419-8300. The petition requested that 40 CFR 180.434 be amended by establishing tolerances for residues of the fungicide propiconazole, 1H-1,2,4-Triazole, 1-{[2-(2,4-dichlorophenyl)-4-propyl-1,3-dioxolan-2-yl]methyl}-, and its metabolites determined as 2,4-dichlorobenzoic acid and expressed as parent compound in or on sugarcane, cane at 1.0 parts per million (ppm). That notice referenced a summary of the petition prepared by Syngenta Crop Protection, LLC, the registrant, which is available in the docket,http://www.regulations.gov.There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has proposed a different tolerance level for the reasons explained in Unit IV.D.

III. Aggregate Risk Assessment and Determination of Safety

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for propiconazole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with propiconazole follows.

A. Toxicological Profile

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The toxicology database for propiconazole is adequate for evaluating and characterizing toxicity and selecting endpoints for purposes of this risk assessment. The primary target organ for propiconazole toxicity in animals is the liver. Increased liver weights were seen in mice after subchronic or chronic oral exposures to propiconazole. Liver lesions such as vacuolation of hepatocytes, ballooned liver cells, foci of enlarged hepatocytes, hypertrophy and necrosis are characteristic of propiconazole toxicity in rats and mice. Decreased body weight gain was also seen in subchronic, chronic, developmental and reproductive studies in animal studies. Dogs appeared to be more sensitive to the localized toxicity of propiconazole as manifested by stomach irritations at 6 mg/kg/day and above.

In rabbits, developmental toxicity occurred at a higher dose than the maternally toxic dose, while in rats, developmental toxicity occurred atlower doses than maternal toxic doses. Increased incidences of rudimentary ribs occurred in rat and rabbit fetuses. Increased cleft palate malformations were noted in two studies in rats. In one published study in rats, developmental effects (malformations of the lung and kidneys, incomplete ossification of the skull, caudal vertebrae and digits, extra rib (14th rib) and missing sternbrae) were reported at doses that were not maternally toxic.

In the two generation reproduction study in rats, offspring toxicity occurred at a higher dose than the parental toxic dose suggesting lower susceptibility of the offspring to the toxic doses of propiconazole.

Propiconazole was negative for mutagenicity in thein vitroBALB/3T3 cell transformation assay, bacterial reverse mutation assay, Chinese hamster bone marrow chromosomal aberration assay, unscheduled DNA synthesis studies in human fibroblasts and primary rat hepatocytes, mitotic gene conversion assay and the dominant lethal assay in mice. It caused proliferative changes in the rat liver with or without pretreatment with an initiator, like phenobarbital, a known liver tumor promoter. Liver enzyme induction studies with propiconazole in mice demonstrated that propiconazole is a strong phenobarbital type inducer of xenobiotic metabolizing enzymes. Hepatocellular proliferation studies in mice suggest that propiconazole induces cell proliferation followed by treatment-related hypertrophy in a manner similar to the known hypertrophic agent phenobarbital. Propiconazole was carcinogenic to male mice. Propiconazole was not carcinogenic to rats or to female mice. The Agency has classified propiconazole as possible human carcinogen used the reference dose (RfD) approach for quantification of human risk. Propiconazole is not genotoxic and this fact, together with special mechanistic studies, indicates that propiconazole is a threshold carcinogen. Propiconazole produced liver tumors in male mice only at a high dose that was toxic to the liver. At doses below the RfD, liver toxicity is not expected; therefore, tumors are also not expected.

Propiconazole has low to moderate toxicity in experimental animals by the oral (Category III), dermal (Category III) and inhalation routes (Category IV), is moderately irritating to the eyes (Category III), minimally irritating to the skin (Category IV) and is a dermal sensitizer.

Specific information on the studies received and the nature of the adverse effects caused by propiconazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found athttp://www.regulations.govin the document titled “Propiconazole Human Health Risk Assessment for an Amended Section 3 Registration on Sugarcane” on pages 12-18 in docket ID number EPA-HQ-OPP-2011-0772.

B. Toxicological Points of Departure/Levels of Concern

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, seehttp://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for propiconazole used for human risk assessment is discussed in Unit B of the final rule published in theFederal Registerof Wednesday, May 11, 2011 (76 FR 27261) (FRL-8873-2).

C. Exposure Assessment

1.Dietary exposure from food and feed uses.In evaluating dietary exposure to propiconazole, EPA considered exposure under the petitioned-for tolerances as well as all existing propiconazole tolerances in 40 CFR 180.434. EPA assessed dietary exposures from propiconazole in food as follows:

i.Acute exposure.Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for propiconazole. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, EPA conducted an acute dietary analysis for propiconazole residues of concern using tolerance levels and 100% crop treated for all existing and proposed uses.

ii.Chronic exposure.In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, EPA conducted a chronic dietary analysis for propiconazole residues of concern using tolerance levels for some commodities, average field trial residues for the remaining commodities, and 100% crop treated for all existing and proposed uses.

iii.Cancer.EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. Cancer risk is quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or nonlinear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data is not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope factor approach is utilized. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to propiconazole. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii.,Chronic exposure.

iv.Anticipated residue and percent crop treated (PCT) information.Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that thelevels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

2.Dietary exposure from drinking water.The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for propiconazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of propiconazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found athttp://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) model, the estimated drinking water concentrations (EDWCs) of propiconazole for acute exposures are estimated to be 55.78 parts per billion (ppb) for surface water and 0.64 ppb for ground water. For chronic exposures for non-cancer assessments EDWCs are 21.61 ppb for surface water and 0.64 ppb for ground water. For chronic exposures for cancer assessment EDWCs are 13.24 ppb for surface water and 0.64 ppb for groundwater.

3.From non-dietary exposure.The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).Propiconazole is currently registered for the following uses that could result in residential exposures: Turf, ornamentals and in paint.

EPA assessed residential exposure using the following assumptions: Short-term risk to toddlers was assessed for incidental oral and dermal exposure. The highest incidental oral and dermal exposure scenarios are expected from residential use on turf. Short-term risk to adults was assessed for dermal and inhalation residential handler exposure as well as from post-application dermal exposure. Adult handlers have some inhalation exposure; however, based on the low vapor pressure of propiconazole, negligible post application inhalation exposure is anticipated to occur. The highest post application exposure from residential use on turf was used to assess risk to short-term aggregate exposures.

The only residential use scenario that will result in potential intermediate-term exposure to propiconazole is dermal and incidental oral post application exposure to children from wood treatment (antimicrobial use).

4.Cumulative effects from substances with a common mechanism of toxicity.Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Propiconazole is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same, sequence of major biochemical events (EPA, 2002). In conazoles, however, a variable pattern of toxicological responses is found; some are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse range of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes. Thus, there is currently no evidence to indicate that conazoles share common mechanisms of toxicity and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the conazoles. For information regarding EPA's procedures for cumulating effects from substances found to have a common mechanism of toxicity, see EPA's Web site athttp://www.epa.gov/pesticides/cumulative.

Propiconazole is a triazole-derived pesticide. This class of compounds can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, including propiconazole, U.S. EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high end estimates of both dietary and non-dietary exposures). In addition, the Agency retained the additional 10X FQPA safety factor for the protection of infants and children. The assessment includes evaluations of risks for various subgroups, including those comprised of infants and children. The Agency's complete risk assessment is found in the propiconazole reregistration docket athttp://www.regulations.gov,Docket Identification (ID) Number EPA-HQ-OPP-2005-0497 and an update to assess the addition of the commodities included in this action may be found in docket ID number EPA-HQ-OPP-2011-0072, in the document titled “Common Triazole Metabolites: Updated Dietary (Food + Water) Exposure and Risk Assessment to Address the Amended Propiconazole Section 3 Registration to Add Foliar Use on Sugarcane.”

D. Safety Factor for Infants and Children

1.In general.Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2.Prenatal and postnatal sensitivity.In the developmental toxicity study in rats, fetal effects observed in this study at a dose lower than that evoking maternal toxicity are considered to be quantitative evidence of increased susceptibility of fetuses to in utero exposure to propiconazole. In the developmental toxicity study in rabbits, neither quantitative nor qualitative evidence of increased susceptibility of fetuses to in utero exposure to propiconazole was observed in this study. In the 2-generation reproduction study in rats, neither quantitative nor qualitative evidence of increased susceptibility of neonates (as compared to adults) to prenatal and/or postnatal exposure to propiconazole was observed. There is no evidence ofneuropathology or abnormalities in the development of the fetal nervous system from the available toxicity studies conducted with propiconazole. In the rat acute neurotoxicity study, there was evidence of mild neurobehavioral effects at 300 mg/kg/day, but no evidence of neuropathology from propiconazole administration. Although there was quantitative evidence of increased susceptibility of the young following exposure to propiconazole in the developmental rat study, the Agency determined there is a low degree of concern for this finding and no residual uncertainties because the increased susceptibility was based on minimal toxicity at high doses of administration, clear NOAELs and LOAELs have been identified for all effects of concern, and a clear dose-response has been well defined.

3. Conclusion.EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for propiconazole is complete except for the lack of immunotoxicity and subchronic neurotoxicity studies. In the absence of specific immunotoxicity studies, EPA has evaluated the available propiconazole toxicity data to determine whether an additional database uncertainty factor is needed to account for potential immunotoxicity. There was no evidence of adverse effects on the organs of the immune system in any propiconazole study. In addition, propiconazole does not belong to a class of chemicals (e.g., the organotins, heavy metals, or halogenated aromatic hydrocarbons) that would be expected to be immunotoxicity. Based on the considerations in this Unit, EPA does not believe that conducting a special Harmonized Guideline 870.7800 immunotoxicity study will result in a POD less than the NOAEL of 10.0 mg/kg/day used in calculating the cPAD for propiconazole, and therefore, an additional database uncertainty factor is not needed to account for potential immunotoxicity.

ii. In the absence of the subchronic neurotoxicity study, EPA has evaluated the available propiconazole toxicity data to determine whether an additional database uncertainty factor is needed to account for potential neurotoxicity after repeated exposures. With the exception of the developmental studies in the rat, there were no indications in any of the repeated dose studies that propiconazole is neurotoxic. In the developmental studies in the rat, there were some clinical signs of neurotoxicity at 300 mg/kg/day but not at lower doses. Further, there is no evidence of neuropathology or abnormalities in the development of the fetal nervous system from the available toxicity studies conducted with propiconazole. In the rat acute neurotoxicity study, there was evidence of mild neurobehavioral effects at 300 mg/kg, but no evidence of neuropathology from propiconazole administration. Based on the considerations in this Unit, EPA does not believe that conducting a Harmonized Guideline 870.6200b subchronic neurotoxicity study will result in a POD less than the NOAEL of 10 mg/kg/day used in calculating the cPAD for propiconazole, and therefore, an additional database uncertainty factor is not needed to account for potential neurotoxicity from repeated exposures.

iii. Although an apparent increased quantitative susceptibility was observed in fetuses and offspring, for the reasons noted in this Unit residual uncertainties or concerns for prenatal and/or postnatal toxicity are minimal.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to propiconazole in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by propiconazole.

E. Aggregate Risks and Determination of Safety

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1.Acute risk.Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to propiconazole will occupy 79% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2.Chronic risk.Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to propiconazole from food and water will utilize 21% of the cPAD for children 1-2 years old the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of propiconazole is not expected.

3.Short-term risk.Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Propiconazole is currently registered for uses that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water and with short-term residential exposures to propiconazole. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposure result in aggregate MOEs of 200 for children and adults.

4.Intermediate-term risk.The only residential use scenario that will result in potential intermediate term exposure to propiconazole is post application exposure to children from wood treatment (antimicrobial use). The aggregate MOE is 120, which is greater than the target MOE of 100. Therefore, this scenario is not of concern.

5.Aggregate cancer risk for U.S. population.Propiconazole is classified as a possible human carcinogen with risk quantitated using a reference dose (RfD) approach, this determination is further explained in section III.C.1.iii. As noted in Unit III.E.2., chronic exposure is below the cPAD.

6.Determination of safety.Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to propiconazole residues.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established MRLs for propiconazoleper sein or on sugarcane, cane at 0.02 ppm. These MRLs are different than the tolerances established for propiconazole in the United States. Codex MRLs apply only to applications by seed piece treatment for sugarcane. The Agency considers seed piece treatment to be a non-food use and did not set a tolerance for that use. In the U.S., application to sugarcane is by foliar spray. This results in higher residues in sugarcane, and thus EPA has established a higher tolerance level for propiconazole on sugarcane than the Codex MRL.

C. Response to Comments

No comments received.

D. Revisions to Petitioned-for Tolerances

The petitioned for tolerance level of 1.0 ppm has been revised to 0.40 ppm. The Organization for Economic Cooperation and Development tolerance calculation procedures were utilized in determining the appropriate tolerance level for the requested amended use. Changes in recommended tolerance are based on the use of these calculation procedures. Additionally, the registrant made a calculation error in choosing the tolerance value.

V. Conclusion

Therefore, tolerances are established for residues of propiconazole, 1-[[2-(2,4-dichlorophenyl)-4-propyl-1,3-dioxolan-2-yl]methyl]-1H-1,2,4-triazole), in or on sugarcane, cane at 0.40 ppm.

VI. Statutory and Executive Order Reviews

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.), do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

VII. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

PART 180—[AMENDED]1. The authority citation for part 180 continues to read as follows:Authority:

21 U.S.C. 321(q), 346a and 371.

2. Section 180.434 is amended by revising paragraph (a), introductory text, and by adding to the table, alphabetically, an entry for “sugarcane, cane” to read as follows:§ 180.434Propiconazole; tolerances for residues.

(a)General.Tolerances are established for residues of propiconazole, including its metabolites and degradates, in or on the commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only those propiconazole residues convertible to 2,4-dichlorobenzoic acid (2,4-DCBA), expressed as the stoichiometric equivalent of propiconazole, in or on the commodity in the table below:

This document responds to eight petitions for reconsideration received in relation to FRA's final rule, published on April 9, 2012, which revised the existing regulations containing safety standards for locomotives. In response to the petitions, this document amends and clarifies certain sections of the final rule.

On February 22, 2006, FRA presented, and the Railroad Safety Advisory Committee (RSAC) accepted, the task of reviewing existing locomotive safety needs and recommending consideration of specific actions useful to advance the safety of rail operations. The RSAC established the Locomotive Safety Standards Working Group (Working Group) to handle this task. The Working Group met twelve times between October 30, 2006, and April 16, 2009. The Working Group successfully reached consensus on the following locomotive safety issues: locomotive brake maintenance, pilot height, headlight operation, danger markings placement, load meter settings, reorganization of steam generator requirements, and the establishment locomotive electronics requirements based on industry best practices. The full RSAC voted to recommend the consensus issues to FRA on September 10, 2009, which were incorporated into the notice of proposed rulemaking (NPRM) issued in this proceeding on January 12, 2011.See76 FR 2199. The specific regulatory language recommended by the RSAC was amended slightly for clarity and consistency. FRA independently developed proposals related to remote control locomotives, alerters, and locomotive cab temperature, issues that the Working Group discussed, but ultimately did not reach consensus.Id.Many comments were submitted to the public docket in response to the NPRM. The comment period closed on March 14, 2011, and after considering the public comments FRA issued a final rule on April 9, 2012.See77 FR 21312.

In accordance with the provisions of Executive Order (E.O.) 13563, the final rule also modified the existing Locomotive Safety Standards based on what was been learned from FRA's retrospective review of the regulation. E.O. 13563 requires agencies to review existing regulations to identify rules that are overly burdensome, and when possible, modify them to reduce the burden. As a result its retrospective review, FRA determined that reductions in the burdens imposed on the industry could be achieved by modifying the regulations related to periodic locomotive inspection and locomotive headlights. FRA continues to believe that the modifications related to periodic locomotive inspection and locomotive headlights that are contained in the final rule do not reduce railroad safety.

Following publication of the final rule, parties filed petitions seeking FRA's reconsideration of some of the final rule's requirements. Petitioners included: The American Association for Justice (AAJ), the Association of American Railroads (AAR), the Central Railway MFG (CRM), D. P. Honold (Honold), David Lombardi (Lombardi), Paul, Reich & Myers, P.C. (PRM), Wabtec Corporation (Wabtec), and the ZTR Equipment Management (ZTR). The petitions filed by these parties principally relate to the following subject areas: locomotive electronics; locomotive alerters; remote control locomotives; periodic inspection of locomotives; preemption of State law; and, locomotive diesel exhaust. In addition to the issues raised in the petitions, FRA has determined that clarification or modification of the final rule is needed with respect to placement of the air flow method (AFM) indicator calibration date on the Form 6180-49A; the duration of the remote control locomotive (RCL) audio indication; and the date by which railroads and vendors must notify FRA regarding electronic locomotive control products that are under development. This document responds to all the issues raised in the petitions for reconsideration and clarifies and amends certain sections of the final rule in response to some of the issues raised in the petitions and clarifies certain other final rule requirements.

II. Issues Raised by Petitions for Reconsideration

In response to the petitions for reconsideration, FRA is modifying the Locomotive Safety Standards final rule related to: § 229.303, Applicability of the Locomotive Electronics; § 229.305, Definition of New or Next-Generation Locomotive; § 229.140(d), Locomotive Alerters; § 229.15(b)(4), RCL Conditioning Run; § 229.15(a)(12)(xii), RCL Audio Indication; and, § 229.23(b)(2) Mechanical Inspection. FRA respectfully refers interested parties to the agency's section-by-section analysis of the final rule and the NPRM for a full discussion of those aspects of the rulemaking that remain unchanged.See76 FR 2199 and 77 FR 21312. The following is a discussion of each of the issues raised in various petitions for reconsideration. These discussions should be read in conjunction with the specific section-by-section analysis that identifies the specific modifications or clarifications being made to the text of the final rule.

A. Locomotive Electronics

Several of the petitions request clarification or revision of certain requirements related to locomotive electronics. FRA's responses to each of the requests that were made in the petitions are provided in this discussion and the specific regulatory changes or modifications are discussed in the section-by-section analysis. For discussion purposes, the responses have been grouped into seven general categories: (1) Responsibility and Applicability, (2) Definitions, (3) Safety Analysis, (4) Appendix F, (5)Confidentiality and Other Product Development Issues, (6) Small Businesses, and (7) Training.

1. Responsibility and Applicability

AAR's petition recommends that FRA “place responsibility for compliance [with the locomotive electronics requirements that are contained in part 229, subpart E (Locomotive Electronics Requirements)] on the suppliers instead of the entities merely purchasing products.” According to the AAR, it “is illogical to hold railroads responsible for compliance [with the Locomotive Electronics Requirements] for products they do not produce;” and, it is ineffective to “hold railroads responsible for products developed by other companies since individual railroads will not have the complete picture of problems or developments associated with the products.”

FRA declines to adopt the AAR's recommendation to place responsibility for compliance with the Locomotive Electronics Requirements with only the suppliers and denies this portion of AAR's petition. The purpose of the Locomotive Electronics Requirements is to ensure that safety critical electronic locomotive control systems, subsystems, and components are designed, operated, and maintained to promote the safe functioning of these systems. FRA believes that both the railroads and suppliers play an important role in ensuring the safety of these systems and that both need to be responsible for properly fulfilling their respective roles.

The final rule provides that a railroad shall develop a Safety Analysis (SA) of each product created in conjunction with safety-critical electronic control systems, subsystems, and components,See§ 229.301(a)-(b). Section 229.7(b) of the existing regulation provides that, “any person (including but not limited to a railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacture, lessor, lessee, or independent contractor)” who violates any requirement of part 229 or of the Locomotive Inspection Act or causes the violation of any such requirement can be subject to civil penalties to the same extent as the railroad. Thus, the onus of responsibility for ensuring safety compliance does not lie solely on the railroads. Compliance is a responsibility shared between the railroads, suppliers, manufacturers, and contractors to ensure the safe handling and functioning of locomotives for industry employees and the public.

For enforcement purposes, FRA retains the authority to determine which entity is more culpable for non-compliance related to a specific product and focus enforcement efforts on that entity or a group of entities. The determination would be based on a fact specific analysis that weighs each entity's role in the non-compliance. However, FRA retains the authority and discretion to hold each and every entity responsible for non-compliance, as provided for in § 229.7(b).

While FRA does acknowledge that the supplier will most likely prepare the initial SA for the product, it is the railroad that makes the final determination of where, when, and how a supplier's product is used. The supplier may, or may not, be fully aware of the manner in which the product is used, nor can it ensure that a product is being used within the design limitations laid out for the product. If, for a given product, the railroad always utilizes the supplier's product within the design limitations as laid out in the SA, implements all of the suppliers design changes as they occur, and does not implement third-party changes that are outside the scope of the SA, then no action would be required by the railroad. The SA would either remain unchanged as in the first case, or would have been updated by the supplier or third-party in the later cases when the supplier or third-party implemented the product change.

Only the railroad would know if they choose not to implement all product design changes specified by a manufacturer, choose to implement additional third party changes to the supplier's product, or choose to use the product in a manner not foreseen in the supplier's SA. If such choices are made by a railroad, the railroad would responsible for ensuring the safety of the product. To comply with these requirements, the railroad may choose to make the changes to the SA to address the changes themselves, it may have the supplier revise the SA to account for the railroad's actions, or it may have a third-party revise the SA to address the differences between the railroad's actual use and the suppliers design use.

Section 229.307(a) of the final rule requires that the railroad develop the SA for a product prior to its use. The railroad is not prohibited from delegating authority for creating or modifying the SA. While a supplier may have contractual obligations to a railroad for providing and maintaining a product that meets a minimum level of safety designated by the railroad, it is ultimately the railroad that makes the determination to: accept or reject the product; place the product in use; and, maintain the product in such a manner to ensure the safety and integrity of the product. FRA recognizes the possibility exists that a supplier may discontinue support for its product for any number of reasons. For example, the supplier may leave the market place. Such an action by a supplier does not preclude the railroad from continuing to operate and maintain the product despite the lack of a responsible supplier. In such a situation, while the railroad remains responsible for the SA, there is no requirement that it modify the SA as provided for in the regulation, electing to have the changes made by a third-party. It is only in the situation where there is no vendor or third-party available that the railroad alone must execute necessary changes to the SA.

Similarly, § 229.309(a) of the final rule places responsibility on the railroad for product changes that are accepted by a railroad. As with § 229.307(a), § 229.309(a) does not prohibit the railroad from delegating responsibility for the SA changes to the supplier or a third party designated by the railroad. FRA recognizes that the supplier is in the best position to aggregate reported product failures and safety hazards. However, the individual railroads that are using the product are in the best position to note the occurrence of a product failure. During operation, when a safety hazard exists, it is also the railroad that is utilizing the product that is best able to determine what immediate actions are necessary to ensure the safety of the crews and public pending final resolution of the problem by the supplier.

Suppliers and other parties are required to aggregate and report problems associated with a product to the railroads, so the railroads may determine what the appropriate course of action is to take in their specific circumstances.See§ 229.309(b) and (c). Suppliers that fail to make these reports to the potentially affected railroads are potentially subject to enforcement action by FRA. FRA believes that actions by suppliers and other parties that amount to hidden recalls are unacceptable. Such actions place individual railroads in an untenable position.

FRA also discourages duplicate submissions of SAs for the same product. There is no requirement to submit a SA to FRA unless one is specifically requested by FRA. Indeed, § 229.311(a) was clearly intended to not require action by FRA. The SA isassumed to have been reviewed and approved by the railroad. FRA does not believe the requirement that the railroad review and approve the SA to be especially onerous, and believes that it reflects what would be appropriate risk mitigation actions by the railroad. FRA finds it extremely unlikely that a railroad would knowingly use a supplier product without understanding the potential hazards and limitations of a product—information that would be specifically detailed in the SA. FRA also believes that the railroad will maintain the SA for the life of the product's use on the railroad. The information in the SA will provide a written record of a products design and safety limitations and hazards to all personnel not intimately involved with the initial acquisition.

In its petition, Wabtec requests that the final rule be changed to eliminate § 229.303(c). According to Wabtec, the railroad and the supplier should not be responsible for evaluating whether products or product changes will result in degradation of safety, or a material increase in safety-critical functionality. FRA believes that it is the responsibility of the railroad and the supplier to evaluate all products with regards to their safety functionality irrespective of the presence or lack of a prior formal SA as required by this regulation. Product changes must be evaluated to determine if they change the level of safety provided, and if the change is such that it results in degradations in safety, or an increase in safety functionality, the product should be formally evaluated and documented in a SA. FRA declines to make any change based on the Wabtec request and denies this portion of Wabtec's petition.

Wabtec also requests that the final rule be changed to exempt products that undergo minor changes from the SA requirements contained in subpart E. As stated in the preamble to the final rule, “products with slightly different specifications that are used to allow the gradual enhancement of a product's capability do not require a full safety analysis.”See77 FR 21331. FRA's intent in the final rule is not to require a full SA for minor product changes or enhancements. However, FRA remains concerned that a series of minor changes over time may result in a major change in functionality from that initially defined and justified in the original SA. As a consequence, FRA does not agree with providing a general exemption as requested by Wabtec and denies Wabtec's petition on this issue. At some point, cumulative changes over time may require a new SA to be developed.

a. Section 229.303(a)(1)

In its petition, Wabtec requests that FRA clarify the language contained in § 229.303(a)(1) of the final rule, which states that “products that are in service prior to June 8, 2012” are exempt from the locomotive electronics requirements contained in subpart E. According to Wabtec, the exemption should apply to products that have been fully developed prior to June 8, 2012. FRA agrees that it intended the final rule to cover products that are fully developed by June 8, 2012, although the products may not yet be in service and agrees to change the language contained in § 229.303(a)(1) to clarify the intent of the final rule. Thus, FRA grants Wabtec's petition in this regard and this document changes the language contained in § 229.303(a)(1) of the final rule to state that “products that are fully developed prior to June 8, 2012” are exempt from the locomotive electronics requirements contained in subpart E.

b. Section 229.303(a)(2)

Wabtec's petition also requests that FRA clarify the language contained in § 229.303(a)(2) of the final rule, which states that “products that are under development as of October 9, 2012, and are placed in service prior to October 9, 2017” are exempt from the locomotive electronics requirements contained in subpart E. According to Wabtec, the exemption should apply to products that have been fully developed prior to October 9, 2017. FRA agrees that it intended for the final rule to cover products that are fully developed by October 9, 2017, even though they may not be in service as of that date and agrees to change the language contained in § 229.303(a)(2) to clarify the intent of the final rule. Thus, FRA grants Wabtec's request and this document modifies the language contained in § 229.303(a)(2) to state that “products that are fully developed prior to October 9, 2017” are exempt from the locomotive electronics requirements contained in subpart E.

2. Definitions

The AAR requests that FRA clarify the definition for the term “new or next-generation locomotive” that is provided in § 229.305 of the final rule. According to the AAR, a definition is provided for the term, but the term is not used in subpart E and that there is no need to define a term, if it is not used in the subpart. FRA agrees, grants AAR's petition in this regard and removes the term “new or next-generation locomotive” from § 229.305 in this document.

ZTR requests that FRA clarify the definition of the term “safety-critical” as it is used in the final rule. FRA believes that the definition that is provided in § 229.305 of the final rule is clear and believes that ZTR's petition fails to explain the definition's lack of clarity. In its petition, ZTR simply states that the definition of “safety-critical” is not clear to ZTR, when it considers its entire product line, including systems and subsystems. FRA's understanding is that generally, locomotive manufacturers consider their product to be the entire locomotive. This includes systems and subsystems. In this situation, the manufacturers' extensive knowledge of the product allows them to conduct a safety analysis on the safety critical elements, including locomotive control systems. Similarly, major suppliers to locomotive manufacturers are also familiar with their own products. They too can clearly identify the safety critical elements and conduct the safety analysis accordingly. Safety-critical electronic systems include, but would not be limited to: Directional control; graduated throttle or speed control; graduated locomotive independent brake application and release; train brake application and release; emergency air brake application and release; fuel shut-off and fire suppression; alerters; wheel slip/slide applications; audible and visual warnings; remote control locomotive systems; remote control transmitters; pacing systems; and speed control systems.

While these provide general examples, any specific item must be considered in the context of its use. For example, fuel injectors might possibly be considered as providing “fuel shut off.” However, in the context of the entire locomotive, they do not act as the primary means of “fuel shut off,” but rather are an element of the engine, the fuel to which is controlled by a separate independent control system. In this situation the injector's would clearly not be safety-critical, while other elements of the fuel control system may. FRA believes that manufacturers are capable of determining which elements of their product line contain safety critical elements, and which ones do not. As such, FRA denies this portion of ZTR's petition and declines to change the definition of “safety critical.”

Wabtec requests that FRA revise the definition of the term “product” that is contained in § 229.305 of the final rule to clarify what is meant by the phrase “directly related to” that is used in the definition. In the final rule, the term “product” means “any safety critical electronic locomotive control system,subsystem, or component, not including safety critical processor based signal and train control systems, whose functions aredirectly related tosafe movement and stopping of the train as well as the associated man-machine interfaces irrespective of the location of the control system, subsystem, or component.” (Emphasis added). FRA believes that the definition of the term “product” is clear and is denying this portion of Wabtec's petition and declines to revise the definition.

The locomotive electronics requirements contained in subpart E are performance based. They are intended to address the application of products, processes, and technologies that have already been identified as well as new and emergent products, processes, and technologies not yet identified. They are also intended to address the application of products, processes, and technologies in manner different than they are currently being used. FRA believes that it is not possible to envision all possible applications of a technology and enumerate all possible products arising from that technology. FRA believes that any enumeration as requested in Wabtec's petition would be inappropriate.

3. Safety Analysis

According to ZTR's petition, due to the complexity and vastness of the certifications required by Appendix F to part 229 of the final rule, each railroad could have their own SA, and in some cases, they could conflict across the same product line. ZTR requests that FRA revise the final rule to resolve this potential conflict.

FRA agrees that there may be differences not only in a product line, but also for the same product. FRA also believes that different railroads may require different levels of detail from their suppliers. However, FRA does not see where this should be an issue for a supplier as it reflects the reality of the market place. Currently, when different railroads purchase the same products from the same vendor, each railroad may require unique customizations to suit that railroads business and operational needs. Different railroads may have different standards for “due diligence,” and therefore, may require different degrees of granularity of the information provided by the vendor. FRA does agree that different elements of a product line may have a different SA based on the complexity of the product and its intended use by the railroad. However, FRA believes that requiring a SA which addresses the complexity and intended use of the product by a railroad is critical to ensuring that the product's safety functionality not only operates correctly, but does so in the environment which the railroad intends it to be used. This type of customized analysis becomes especially critical if different railroads desired to use the product in different manners to support the railroads operations.

Without this type of customization, the risk exposure of the railroad, the railroads employees, and the public, cannot be determined by either the railroad or FRA. Generally, only a single inclusive SA that addresses the different use cases for the products used by the different railroads is required. FRA would recognize as acceptable any appropriately inclusive SA done under the auspices of one railroad, or a consortium of railroads.

ZTR's petition also states that because FRA's approval of the SA is “open-ended,” it is subject to interpretation by each individual reviewer and may be inconsistent. Section 229.311(b) of the final rule is intended to limit FRA's review of SAs. FRA reemphasizes that it conducts reviews of SAs on a case-by-case basis, and does not formally approve or disapprove SAs. FRA anticipates that the railroad will exercise due diligence in the design and review process prior to placing the product in use for purposes that are outside of the scope of subpart E. A vendor's railroad customer therefore would determine the level of detail necessary in a SA to prove that they have demonstrated due diligence prior to a product change, or placing a new or next generation product in use. Because individual railroads may have different expectations as to what is required to them to demonstrate due diligences, any SA, by necessity will be subject to differing interpretations and differing degrees of granularity. This, of course, does not restrict FRA review where it appears that due diligence has not been exercised, there are indications of fraud or malfeasance, or the underlying technology or architecture represent significant departures from existing practice.

Also, as previously indicated, the locomotive electronics requirements that are contained in subpart E of the final rule are performance based, and therefore, are by their very nature somewhat open-ended. As its name implies, performance based regulation and oversight is an approach that focuses on performance, as well as the desired results and outcomes. This approach differs from the traditional, prescriptive regulatory and oversight approach in that it emphasizes what must be achieved, rather than how the desired results and outcomes must be obtained. As is the case with any such regulatory and oversight approach, a variety of different issues and concerns can exist that reflect the specific concerns of the overseeing organization. Issues that concern the frequency and nature of reviews and inspections, the style of interaction of inspectors and inspected entities, the way in which sanctions are used, and the willingness of organizations responsible for to accept alternative approaches to accomplishing the same end will differ.

In the specific context of FRA regulatory oversight, any regulatory approach must confront a fundamental issue of how tight controls should be in promoting consistency and accountability versus how much discretion should be granted in promoting flexibility and innovation. As discussed in detail below, the performance based approach to regulation moves this balance from promoting consistency and accountability under current prescriptive approaches toward a greater emphasis on flexibility and innovation. At issue for any particular regulatory situation is how that balance is being struck.

FRA fully recognizes the reality that this regulation rests on what FRA inspectors do in the field when enforcing the regulation and monitoring performance, and that this is where the potential for inequities and inconsistencies exist. FRA also recognizes that regulated entities will react negatively to the lack of predictability if performance based regulations are inconsistently interpreted. However, FRA also believes that regulated entities will see little improvement over the prior more prescriptive regulations, if performance based regulations are interpreted too narrowly in allowing for a limited range of solutions. While there is the risk that there may be some inconsistencies, FRA believes the potential benefits of greater effectiveness in reaching specific regulatory objectives, flexibility in the means of adhering to the regulation, increased incentives for innovation, and reduced costs of compliance for regulated entities far outweigh the risks of inconsistencies in the application of regulations.

ZTR's petition also requests that FRA clarify when a “grandfathered” system may have to undergo a SA due to design change. FRA clarifies as follows; FRA believes that the evaluation of a product must be done on a case-by-case basis within the context of the proposed use of the product. Products that result in degradation of safety or a materialincrease in safety critical functionality are not exempt. Products with slightly different specifications that are used to allow the gradual enhancement of the product's capabilities do not require a full SA but do require a formal verification and validation to the extent that the changes involve safety-critical functions. The grandfathering provision does not apply to new or next-generation locomotive control system, which refers to locomotive control products using technologies or combinations of technologies not in use on the effective date of this regulation, products that are under development as of October 9, 2012, and are fully developed by October 9, 2017, or products without established histories of safe practice. Traditional, non-microprocessor systems, as well as microprocessor and software based locomotive control systems that are currently in use have used existing technologies, existing architectures, or combinations of these to implement their functionality are grandfathered.

Wabtec's petition notes that FRA is silent on the estimated costs of preparing and maintaining a SA that is required by the final rule. FRA believes that the requirements that are contained in subpart E related to the SA represent good engineering practice for safety-critical systems, and that the costs of such an effort are a normal part of the system design lifecycle. Meeting these requirements represents an exercise of the due diligence required on the part of the railroad and/or supplier to minimize product liability. FRA believes that by allowing for broad flexibility in the specific standards, processes, and procedures used by the railroad and vendor, the railroad and vendors can accomplish this in a manner which both satisfies good engineering practice and is consistent with the railroads and vendors business philosophy. As such, FRA disagrees with Wabtec's petition, which alleges that the SA requirements are so inflexible that they will result in significant product cost increases or decreases in vendor profitability. FRA believes that virtually all companies developing safety critical systems currently conduct a comprehensive SA as an integral part of its products lifecycles. FRA does not specify any particular format for the SA, so there should be no additional costs for preparing documents that the suppliers are presently preparing in the normal course of their business.

4. Appendix F

In its petition, ZTR contends that there is too much room for interpretation in regards to the number and level of certifications suggested in Appendix F for any and all products. ZTR asserts that it's not clear whether 5% or 95% of these certifications will be requested, or whether they will be requested for simpler or more complex products. Contrary to ZTR's assertion, there is no requirement in the final rule for certification by the FRA, or the railroad purchasing a product for electronic systems covered by part 229. There is a requirement that the railroads “* * * shall develop a Safety Analysis (SA) for each product subject to this subpart prior to the initial use of such product on their railroad.” The requirements contained in the final rule hold individual railroads accountable for ensuring that an appropriate SA for products that they buy has been done and the analysis is

“* * * based on good engineering practice andshould be consistent with the guidance contained in Appendix F(emphasis added) of this part in order to establish that a product's safety-critical functions will operate with a high degree of confidence in a fail-safe manner (see 49 CFR 229.307(a) and (b).”

FRA involvement in the review process of a railroad's SA is on a case-by-case basis.See§ 229.311(b) of the final rule. ZTR is correct in noting that that the regulation does not specify the scope of the SA. Such specificity would be inconsistent with the performance based nature of the regulation. The scope of a SA will vary greatly depending upon the function of the product in question, the safety criticality of its elements, its implementation, and good engineering practice.

FRA notes that the use of Appendix F is not mandatory. Appendix F offers one approach to developing a SA. There are a number of equally effective or better approaches. FRA encourages railroads and manufacturers to select an approach best suited to their business model. FRA would consider as acceptable any approach that would be equal to, or more effective than, the one outlined in Appendix F. As such, FRA is denying those portions of the petitions requesting modification of the appendix and declines to revise Appendix F of the final rule.

Wabtec requests that FRA revise the final rule to standardize an approach to developing a SA and the appropriate level of human factors analysis. As FRA states in both the preamble and the rule text to the final rule, Appendix F represents only one possible set of minimum recommended practices for design and safety analysis. FRA recognizes that there may be any number of practices in use both within and outside the railroad industry that can be used to demonstrate the same or better levels of safety. FRA also recognizes that the practices and standards that should be implemented may vary depending on the safety criticality and sensitivity of the product in question. Rather than mandate that all railroads and suppliers adopt the same standards and practices for all products, regardless of the product in question and the railroads and vendors already defined standards and processes, FRA believes it is more appropriate to outline representative general standards and requirements and address specific standards on a case-by-case basis. Therefore, FRA denies Wabtec's petition in this regard and declines to revise the final rule. That said, FRA would not be adverse to the industry's use of a specific railroad industry standard that provides the same or equivalent level of functionality, if such a standard were developed and approved by the industry.

Wabtec's petition also requests that FRA revise the final rule to specify a single applicable standard for verification and validation of products. FRA believes that the latitude granted in the final rule enables railroads and vendors to accomplish the requirements in a manner that not only satisfies the technical requirements, but also is consistent with the railroads and vendors existing business practices. FRA continues to believe that mandating a single standard without due regard to existing business practices and engineering philosophies would actually result in increased costs as well as decreased innovation. Thus, FRA denies Wabtec's petition on this issue and FRA declines to make any change to the final rule. FRA notes that it would not be adverse to the industry's use of a specific railroad industry standard that provided the same or equivalent level functionality, if such a standard were developed and approved by industry.

5. Confidentiality and Other Product Development Issues

The petitions of both ZTR and Wabtec express concerns regarding the intellectual property protection and public disclosure of design documentation, as well as development plans without any guarantee of confidentiality. The SA and associated documentation is primarily shared between the supplier and its railroad customer and covered by mutually agreed non-disclosure agreements. To ensure confidential treatment by FRA ofbusiness sensitive information that is provided to FRA, a request for confidential treatment should be made as instructed by 49 CFR 209.11. Thus, FRA believes that no change to the final rule is necessary. It is the responsibility of the railroad and their suppliers to clearly designate what elements of a submission to FRA should be exempted from a public request and the basis of such an exemption.

ZTR also expresses concern that the final rule will negatively impact the nimbleness of product development for suppliers and most certainly will reduce the amount of Research and Development (R&D) invested in rail. According to the ZTR, there is already a substantial risk on the part of the supplier during the R&D stages of product development. The outcome of this ruling will require that at the beginning of the R&D cycle, the effort and cost required to understand and satisfy the SA must be clearly understood. FRA disagrees. The regulation places no restrictions on the type and nature of research and development that may be undertaken. The regulation does require that products resulting from R&D and development efforts are proactively designed and built to demonstrate they can meet an acceptable level of safety over the life of the product. Proven safety methods and techniques are used to prevent, eliminate and control hazards. Such safety considerations begin at the initial design stages of a project. Although design cannot eliminate unsafe acts by irresponsible employees, it can incorporate measures to reduce the individual's ability to take a risk.

One of the biggest challenges to life cycle safety is cost. The influences to overall project/system safety considerations have more of an impact and cost less when factored into the mix early on. Using this cost influence concept allows designers to minimize cost impact while positively influencing the safety considerations and implementations to systems and projects. However, cutting too many costs at the design level can compromise workers' safety and result in long-term economic losses associated with system downtime, on-site design repairs, and injury to workers that may result in legal action. Obviously, cutting too many corners can be more costly and unsafe than if the original budget had provided sufficient funding for life cycle safety.

According the ZTR's petition, safety originates from certainty and therefore railroad safety requirements need to be clearly spelled out and not subject to interpretation. This knowledge would enable more intelligent decision making when evaluating and moving forward with R&D investments. It also would keep product costs to a minimum, while ensuring safety is at the forefront. Again, FRA disagrees. System safety begins the structured assessment of potential hazards and risks with the aim to design out problems at source rather than incorporate measures at a later time to deal with a problem. The approach uses systems theory and systems engineering to prevent foreseeable accidents and to minimize the result of unforeseeable accidents. Losses in general, not just human death or injury are considered. Such losses may include destruction of property, loss of mission, and environmental harm.

The design goal is the management of hazards: Their identification, evaluation, elimination, and control through analysis, design and management procedures. Safety considerations must be part of the initial stage of concept development and requirements definition. The degree to which it is economically feasible to eliminate a hazard rather than to control it depends upon the stage in system development at which the hazard is identified and considered. Early integration of safety considerations into the system development process allows maximum safety with minimal negative impact. The alternative is to design the product, identify the hazards, and then add on protective equipment to control the hazards when they occur, which is usually more expensive and less effective.

6. Small Businesses

According to the CRM's petition, the requirements contained in the final rule related to locomotive electronics do not take into account the limited resources of small railroad suppliers and favor conglomerate suppliers that are currently in the market place. FRA has exempted currently existing products from the requirement to create a SA and provided a grace period for products already under development and will be fully developed by October of 2017. For changes to existing products, the need for a SA has been limited to changes that result in degradations in safety or an increase in safety functionality. FRA recognizes that there may be any number of practices in use both within and outside the railroad industry that can be used to create a SA and demonstrate the same or better levels of safety. FRA also recognizes that the practices and standards that should be implemented may vary depending on the safety-criticality and sensitivity of the product in question. Rather than mandate all railroads and suppliers adopt the same standards and practices for all products, regardless of the product in question and the railroads and vendors already defined standards and processes, FRA believes it is more appropriate to outline representative general standards and requirements and address specific standards on a case-by-case basis. To that end, FRA has indicated in both the preamble and the rule text of the final rule that Appendix F represents only one possible set of minimum recommended practices for design and safety analysis. FRA believes that the latitude granted in the final rule enables railroads and vendors to accomplish the requirements in a manner that not only satisfies the technical requirements, but also is consistent with the railroads and vendors existing business practices. FRA believes that mandating a single standard without due regard to existing business practices and engineering philosophies would actually result in increased costs as well as decreased innovation.

FRA believes that the requirements of subpart E related to the SA represent good engineering practice for safety critical systems, and that the costs of such an effort are a normal part of the system design lifecycle. Meeting these requirements represents an exercise of the due diligence required on the part of the railroad and/or supplier to minimize product liability. FRA believes that by allowing for broad flexibility in the specific standards, processes, and procedures used by the railroad and vendor, the railroad and vendors can accomplish this in a manner which both satisfies good engineering practice and is consistent with the railroads and vendors business philosophy. Thus, FRA disagrees with the assertions of CRM and continues to believe that the approaches taken in the final rule are consistent with existing good business practice and provide necessary flexibilities to allow small business to comply with the requirements without undue hardship.

7. Training

AAR's petition requests that FRA eliminate the requirement related to training that is contained in § 229.317 of the final rule. FRA declines to eliminate the requirement for developing training based on task analysis (TA). FRA believes that the TA based training addresses a need for training that will address human factors related to the implementation of subpart E. The TA analysis provides the background, setting, and context for training. AARappears to express concern regarding the cost of training, but fails to provide any human factors based rationale for elimination of the requirement.

TA is a fundamental methodology in the assessment and reduction of human error. The term TA can be applied very broadly to encompass a wide variety of human factors techniques. Nearly all TA techniques provide, as a minimum, a description of the observable aspects of operator behavior at various levels of detail, together with some indications of the structure of the task. These are action-oriented approaches. Other techniques focus on the mental processes, which underlie observable behavior,e.g.decision making and problem solving. These are known as cognitive approaches.

TA methods can be used to eliminate the preconditions that give rise to errors before they occur. They can be used as an aid in the design stage of a new system, or the modification of an existing system. They can also be used as part of an audit of an existing system. TA can also be used in a retrospective mode during the detailed investigation of major incidents. The starting point of such an investigation must be the systematic description of the way in which the task was actually carried out when the incident occurred. This may, of course, differ from the prescribed way of performing the operation, and TA provides a means of explicitly identifying such differences. Such comparisons are valuable in identifying the immediate causes of an accident.

A TA is an important component of the instructional systems design (ISD) approach to training. As the ultimate purpose of a systematic approach to training design is to produce a properly trained person, the training designer must understand a job and its contents in considerable detail to design, develop and carry out effective training. If this step is not done, and done well, there will be no factual basis for development of effective, efficient instruction.

The analysis process provides information for the design and development of education/training that, in turn, is used to produce organizations that can accomplish their missions, and individuals capable of performing their tasks and duties. TA: (1) Identifies valid training and non-training solutions to organization and individual performance deficiencies; (2) determines what is trained in the form of critical, collective, and individual tasks, and supporting skills and knowledge; (3) provides an accurate description of identified critical tasks; and, (4) provides a definitive performance standard that describes what constitutes successful organization and individual performance of the task. Based on the discussion above, FRA denies that portion of AAR's petition related to this issue and declines to make any changes to this portion of the final rule.

B. Locomotive Alerters

AAR's petition requests that FRA amend the alerter requirement that is contained in § 229.140(d) of the final rule to eliminate the lower bound for the alerter warning indication interval. The final rule requires that an alerter provide a warning indication at a frequency that is within 10 seconds of the amount of time that is calculated by the following formula: Timing cycle specified in seconds = 2400 ÷ track speed. According to AAR, its standard differs from the final rule because it establishes a maximum interval of approximately 120 seconds. The final rule requires a warning indication interval that could be much greater than 120 seconds when operating at speeds of less than 20 mph.

AAR states that alerter warning indications at intervals that exceed 120 seconds (nominal) at or below 20 miles per hour are incompatible with the existing AAR standard for alerters and that more frequent alerts will enhance safety. While limiting their discussion to speeds under 20 miles per hour, AAR then petitions for a rule change which would allow the alerter to be activated more frequently than the formula given in the regulation at all speeds. FRA denies the petition for speeds of 20 mph and above, and will retain the formula given in the final rule. Arguments made by AAR for a maximum interval of 120 seconds (nominal) at speeds below 20 mph have merit, particularly in light of the findings of the National Transportation Safety Board's (NTSB) investigation of the rear end collision at Red Oak, Iowa, on April 17, 2011.SeeNTSB Accident ID DCA11FR002, Operations Group Factual Report at page 6. In that accident, two lives were lost at a speed only three mph faster than the proposed dividing speed, and approximately seven seconds away from activation of the alerter. Although neither the formula in the final rule, nor the AAR proposed maximum interval of approximately 120 seconds, would have prevented the fatalities at Red Oak, the accident is an example of a variance of a few seconds of the timing of the alerter warning indication can make a difference, even at relatively low speeds. For speeds below 20 mph, FRA is partially granting AAR's Petition and revising the alerter timing to 120 seconds, with the same 10 second tolerance that is provided for in this section for all other speeds. The specific changes are discussed in the section-by-section analysis below.

C. Remote Control Locomotives1. § 229.15(b)(4) RCL Conditioning Run

AAR's petition requests that FRA clarify the RCL requirement related to conducting conditioning runs that are contained in § 229.15(b)(4) of the final rule. Section 229.15(b)(4) provides that: “[e]ach time an RCL is placed in service and at the start of each shift locomotives that utilize a positive train stop system shall perform a conditioning run over tracks that the positive train stop system is being utilized on to ensure that the system functions as intended.” According to the AAR, its understanding is that FRA intended that: (1) An RCL must pass over only one transponder to ensure that the system is working; and (2) that the conditioning run is required to be performed at the beginning of each shift, but not necessarily the first task that is performed by the RCL operator. However, AAR is concerned that the requirement could be misinterpreted to mean that a conditioning run is required: (1) Over each and every track that utilizes a positive train stop system that could be utilized by an RCL during a shift; or (2) at the beginning of every shift before any work is done.

FRA agrees that the existing final rule language could potentially be misinterpreted as stated by AAR. Such misinterpretations could lead to impractical results from an operational perspective. For example, at a hump yard where positive train stop is used, the requirement could be misinterpreted to mean that switching over the hump would have to cease while the conditioning run was being performed. As another example, in the same hump yard, the requirement could be misinterpreted to mean that when an RCL that is coupled to cars being moved over the hump when the previous shift ends with the job only partially complete (e.g.some cars are halfway up the hump), then the new RCL operator would have to perform a conditioning run prior to completing the hump move. To avoid these misinterpretations, FRA is clarifying the RCL requirement related to the conditioning run that is contained in § 229.15(b)(4) of the final rule as discussed in the section-by-section analysis below.

2. § 229.15(a)(12)(xii) RCL Audio Indication

AAR's petition also requests clarification of the requirement relatedto the audio indication of RCL movement that is contained in § 229.15(a)(12)(xii) of the final rule. This section requires that the operator control unit (OCU) shall be capable of providing an audio indication of movement of the RCL. According to AAR, all RCL's currently provide an audio indication of movement when they are moving via the locomotive bell. The AAR assertion that this audio indication complies with the requirement that is contained in § 229.15(a)(12)(xii), because the OCU controls the movement of the RCL and the OCU provides an audio indication of the movement of the RCL via the locomotive bell. In addition, the AAR expresses concern that this requirement could be misinterpreted to mean that the OCU is required to produce an audio indication that emanates directly from the OCU, rather than from the RCL. FRA intended for the final rule to require the audio indication to emanate from the RCL as it is being operated by the OCU. A properly sounding locomotive bell is an acceptable example of an audio indication that emanates from the locomotive. The audio indication functions as a warning to people who are nearby the moving locomotive and not necessarily nearby the OCU. FRA also recognizes that the existing language could lead to misinterpretation, as stated in the AAR petition. Therefore, FRA grants AAR's petition related to this issue and agrees to clarify the language that is contained in § 229.15(a)(12)(xii) to identify the RCL as the source of the audio indication.

D. Locomotive Periodic Inspection and Mechanical Inspection

In its petition, AAR requests that FRA revise the periodic inspection requirement that is contained in § 229.23 of the final rule to make the 184-day interval optional. FRA believes that the 184-day interval is optional and does not believe anything in the final rule states otherwise. However, FRA's expectation is that the railroad will note on the FRA Form 6180-49A whether a locomotive is on a 92-day or 184-day inspection interval. The railroad must choose one inspection interval and stick with it until the inspection cycle is completed.

Section 229.23(b)(2) Daily Inspection by QMI

AAR's petition also requests that FRA modify the frequency of the daily inspection that is performed by a qualified mechanical inspector (QMI daily inspection) that is contained in § 229.23 of the final rule. The final rule requires a QMI daily inspection to be performed every 31 days. According to the AAR, the final rule could require a QMI daily inspection within a few days before the next periodic inspection, which AAR states would include a QMI daily inspection, by standard industry practice. The AAR asserts that two QMI daily inspections within days of each other cannot be justified and recommends that the final rule be modified so that a QMI daily inspection is not required to be performed when a periodic inspection is due within 41 days of the previous QMI daily inspection, effectively permitting 10 days of flexibility. While recognizing that overly frequent QMI daily inspections could be required under the provisions of the final rule, FRA does not agree with the AAR's proposed solution of a variable interval for the QMI daily inspection. FRA believes it would be awkward and possibly confusing to implement a requirement containing variable intervals. Generally, the inspection requirements that are contained in the Locomotive Safety Standards do not have provisions for variable interval inspections, except in the case of out-of-service credit that provided for in § 229.33.

FRA's intent in the final rule is to require that a minimum of five QMI daily inspections be performed between 184 day periodic inspections. FRA recognizes that a 31-day interval provides little, if any, flexibility in scheduling the QMI daily inspections. For example, if the average interval for the first five QMI daily inspections is 30 days, only one day shorter than the maximum amount of time that is permitted by the requirement, then a sixth QMI daily inspection would be due on day 181, three days before the periodic inspection. To keep the inspection interval constant, and provide the flexibility that the industry seeks, FRA is partially granting the AAR's petition on this issue and changing the QMI daily inspection interval to 33 days in this response. This will provide 12 days of potential flexibility in each periodic inspection cycle.

E. Locomotive Cab Temperature

The petitions of Honold and Lombardi request that the requirements contained in the final rule related to cab temperature be revised to require that air conditioning units be installed and operative in all lead locomotives. FRA declines to adopt this request for revision for several reasons. First and foremost is that there are several safety-critical systems or components that must take precedence over air conditioning on lead units. These include but are not limited to: An ability to control certain subsystems throughout the consist (See§ 229.13); an air brake control system which functions as intended (See§ 229.46); and, headlights and auxiliary lights which provide night vision for the crew and enhanced grade crossing safety for the public (See§ 229.125). Adding air conditioning in locomotive cabs to the list of items which disqualify a locomotive from lead service could create power shortages, including preventing a trailing unit which is otherwise lead-qualified from being switched to the lead position when an en route failure of the lead locomotive could otherwise be remedied by that move.

Another major consideration was the difficulty of adequately measuring cab conditions under which air conditioning would be required. Disqualifying a locomotive from lead service on a day where ambient (un-conditioned) temperature in the cab is moderate would have no safety benefit. As pointed out in comments received in response to the NPRM from U.S. Army Joint Munitions Command, Transportation Division, (Docket Number FRA-2009-0094-0018), available scientific research on human performance in hot environments has shown that it is not simply temperature (scientifically called dry-bulb temperature) but Wet-bulb Globe Temperature (WBGT) which must be measured. A rule based on WBGT would be exceedingly difficult to enforce, because the expense of the equipment required to make the measurement would mean that few people would be able to make reliable measurements.

Overall, the goal of this change in the Locomotive Safety Standards is to take a first step toward improving the temperature conditions in locomotive cabs. Maintenance of the air conditioners is currently required at periodic inspections. In the preamble to the final rule, FRA stated that it will monitor air conditioning maintenance performed by railroads to ensure that maintenance is being adequately performed. If FRA determines that the prescribed level of maintenance is insufficient to ensure the proper functioning of the air conditioning units, FRA will consider taking further regulatory action to address the issue. The issue of cab temperature is also being referred to the Railroad Safety Advisory Committee's Fatigue Management Working Group (which includes participants representing rail labor) for further study.

F. Preemption

PRM's petition requests that FRA provide its current position on the pre-emptive effect of the Locomotive Inspection Act (LIA). The pre-emptive effect of the LIA, to the extent that it was addressed by the Supreme Court inKurnsv.Railroad Friction Products Corp.,132 S. Ct. 1261 (2012), has been determined by the Supreme Court. FRA is in the process of fully considering the implications of the Supreme Court's decision inKurns,and FRA's application of the LIA in light of the decision. Moreover, FRA believes that this issue is outside the scope of the petitions for reconsideration of the Locomotive Safety Standards final rule. The final rule did not establish or modify any Federal requirements related to the pre-emptive effect of the LIA. As such, FRA denies PRM's petition on this issue and declines to further discuss the pre-emptive effect of the LIA in this rulemaking proceeding.

G. Locomotive Diesel Exhaust

The petition of AAJ requests that FRA clarify its preamble discussion of the locomotive diesel exhaust requirement that is contained in § 229.43. FRA believes that the preamble discussion related to locomotive diesel exhaust is clear and accurately reflects FRA's existing understanding and implementation of the requirement. The final rule does not establish or modify any requirements related to the locomotive diesel exhaust requirement. As such, FRA believes that the AAJ's request is outside the scope of this rulemaking proceeding. Thus, FRA denies AAJ's petition related to this issue.

Following the publication of the final rule, FRA is undertaking the task of updating the FRA Form F 6180-49A (blue card) to accurately reflect the requirements contained in part 229 as they stand after the Locomotive Safety Standards final rule has become effective. During this process, FRA determined that the blue card that is under development may be unclear regarding where the AFM calibration date should properly be recorded. The blue card, currently under development, contains a box labeled “AFM calibration,” while § 229.29 requires that the AFM calibration date be recorded in the remarks section of the blue card. FRA intended for the calibration date to be recorded in the remarks section of the blue card only in the absence of a specific box labeled “AFM calibration.” When such a box exists, the AFM calibration date should be recorded in the specifically labeled box. When such a box does not exist, the AFM calibration date should be recorded in the remarks section. FRA is revising the language contained in § 229.29 to clarify this point to allow for entry of AFM calibration information in either place.

B. Record of Defects and Repairs Between Periodic Inspections

FRA is amending the language contained in § 229.23(h) of the final rule to clarify the requirement. The final rule states that “[t]he railroad shall maintain, and provide employees performing inspections under this section with, a list of the defects and repairs made on each locomotive over the last ninety-two days.” This requirement is intended to ensure that an employee who performs an inspection that is required by this section is given the locomotive's history of defects that were found during inspections, and repairs that were made to the locomotive, since the date that the last inspection that is required by this section occurred. The locomotive's history will provide the employee with important information that will assist in the performance of a proper inspection. Prior to the final rule, periodic inspections required by this section were required to be performed at intervals not to exceed 92 days. As such, the record of the defects and repairs for the locomotive was required to be maintained and provided to appropriate employees for up to 92 days. Section 229.23(b) of the final rule modified the requirement to permit certain locomotives to operate for up to 184 days between periodic inspections. For a locomotive that is permitted to receive a periodic inspection at intervals not to exceed 184 days, the record of the defects and repairs for the locomotive is required to be maintained and provided to appropriate employees for up to 184 days. Based on the rule contained in the final rule, FRA believes that the requirement could be understood to mean that all locomotives, including those that are permitted to operate for 184 days between periodic inspections, require only 92 days of records to be maintained and provided to appropriate employees. To clarify the requirement, FRA is amending the language to read as follows: “The railroad shall maintain, and provide employees performing inspections under this section with, a list of the defects and repairs made on each locomotive since the date that the last inspection required by this section was performed.”

C. Duration of the RCL Audio Indication

Section 229.15(a)(12)(xii) of the final rule requires that the RCL shall be capable of providing an audio indication of movement of the RCL. FRA believes that in order to function as intended as a warning to people that are nearby that the RCL that the equipment is moving, the audio indication must be a minimum of 3 seconds in duration. FRA believes that at this time all RCL units comply with this requirement as they are currently manufactured and that this timeframe is standard practice within the industry. Thus, FRA is clarifying the final rule in this document by specifically including that the audio indication last at least 3 seconds.

D. RCL Remote Control Pullback Protection as an Example of a Positive Train Stop System

FRA is clarifying the requirement that is contained in § 229.15(b)(4) of the final rule by modifying the language. The final rule states that “[e]ach time an RCL is placed in service and at the start of each shift locomotives that utilize a positive train stop system shall perform a conditioning run over tracks that the positive train stop system is being utilized on to ensure that the system functions as intended.” Section 229.5 of the final rule provides a definition for the term “Remote Control Pullback Protection,” (RCPP), which is a type of positive train stop system (PTSS). FRA included the definition in the final rule because it intended to provide RCPP as an example of a PTSS that is acceptable for the purposes of § 229.15. To clarify this point, the language is being amended to read as follows: “[e]ach time an RCL is placed in service and at the start of each shift locomotives that utilize a positive train stop system, such as remote control pullback protection, shall perform a conditioning run over tracks that the positive train stop system is being utilized on to ensure that the system functions as intended.”

This section is also being amended in response to petitions for reconsideration of the final rule. For a discussion of those changes, please see section (c)(1) of the Issues Raised by Petitions for Reconsideration.

E. Removing Erroneous Internet Address That Is Contained in the Electronic Recordkeeping Requirements

Section 229.20(d)(2) of the final rule contains an erroneous link to Westlaw. The Internet address has no significance related to the electronic recordkeeping requirements and was not intended to be included in the rule text. As such, toprevent any confusion, the Internet address is being removed.

FRA is modifying the language contained in § 229.15(a)(12)(xii) of the final rule to clarify that an RCL is required to produce audio indication of movement for at least 3 seconds and that the OCU must be capable of activating the audio indication of movement. FRA believes that in order to function as intended as a warning to people that are nearby that the RCL that the equipment is moving, the audio indication must be a minimum of 3 seconds in duration. This was not expressly stated in the final rule, but to provide additional clarity on the issue, FRA is expressly adding the 3 second duration to § 229.15(a)(12)(xii) in this response to petitions for reconsideration. In addition, the language contained in the final rule could incorrectly be read as providing that the OCU itself is required to produce an audio indication of movement. To avoid such a misinterpretation, the word “activate” is being added to § 229.15(a)(12)(xii) to read as follows “[a]ctivate the audio indication of movement that is located on the RCL for a duration of at least 3 seconds * * *” FRA believes that these changes clarify the final rule.

FRA is also modifying the RCL requirement related to the conditioning run that is contained in § 229.15(b)(4) of the final rule to clarify that: (1) an RCL must pass over only one transponder to ensure that the system is working; and, (2) that the conditioning run is required to be performed at the beginning of each shift, but not necessarily the first task that is performed by the RCL operator. The language contained in the final rule states that“[e]ach time an RCL is placed in service and at the start of each shift locomotives that utilize a positive train stop system shall perform a conditioning run over tracks that the positive train stop system is being utilized on to ensure that the system functions as intended.” The modified language that is established by this response to petitions for reconsideration is as follows “[e]ach time an RCL is placed in service and at the first practical time after the start of each shift, but not more than 2 hours after the start of that shift, locomotives that utilize a positive train stop system shall perform a conditioning run over a track that the positive train stop system is being utilized on to ensure that the system functions as intended.” Adding the phrase “at the first practical time after * * * but not more than 2 hours after the start of that shift * * *” and changing the word “tracks” to “track,” add clarity to this requirement.

FRA is further modifying the language that is contained in § 229.15(b)(4) of the final rule to clarify FRA included the definition of RCPP in the final rule because it intended to provide RCPP as an example of a PTSS that is acceptable for the purposes of § 229.15. For a more detailed discussion of the change to this section please see section D of the Clarifying Amendments.

Section 229.20Electronic Recordkeeping

Section 229.20(d)(2) of the final rule contains an erroneous link to Westlaw. The Internet address has no significance related to the electronic recordkeeping requirements and was not intended to be included in the rule text. As such, to prevent any confusion, the Internet address is being removed and the section will read as follows: [p]aper copies of electronic records and amendments to those records that may be necessary to document compliance with this part, shall be provided to FRA for inspection and copying upon request. Paper copies shall be provided to FRA no later than 15 days from the date the request is made; and, * * *.”

Section 229.23Periodic Inspection: General

FRA is amending the language contained in § 229.23(b)(2) of the final rule to change the frequency of the QMI daily inspection from every 31 days to every 33 days. As noted in the discussion of AAR's petition contained in section D of the Issues Raised by Petitions for Reconsideration above, FRA believes that the intent of the final rule is to require that a minimum of five QMI daily inspections be performed between 184 day periodic inspections. FRA recognizes that a 31-day interval provides little, if any, flexibility in scheduling the QMI daily inspections. For example, if the average interval for the first five QMI daily inspections is 30 days, only 1 day shorter than the maximum amount of time that is permitted by the requirement, then a sixth QMI daily inspection would be due on day 181, three days before the periodic inspection. To keep the inspection interval constant, and provide the flexibility that the industry seeks, FRA is partially granting the AAR's petition on this issue and changing the QMI daily inspection interval to 33 days. This will provide 12 days of potential flexibility in each periodic inspection cycle.

FRA is also amending the language contained in § 229.23(h) of the final rule to clarify the requirement. The final rule states that “[t]he railroad shall maintain, and provide employees performing inspections under this section with, a list of the defects and repairs made on each locomotive over the last ninety-two days.” To clarify the requirement, FRA is amending the language to read as follows: “The railroad shall maintain, and provide employees performing inspections under this section with, a list of the defects and repairs made on each locomotive since the date that the last inspection required by this section was performed.” For a more detailed discussion of the change to this section please see section B of the Clarifying Amendments.

Section 229.29Air Brake System Calibration, Maintenance, and Testing

To clarify the final rule, FRA is amending the language contained in § 229.29(g)(1) to indicate that the date of AFM indicator calibration shall be recorded and certified on the Form F6180-49A. Please see the preceding discussion in section A of the Clarifying Amendments for background information related to this modification.

Section 229.140Alerters

FRA is amending the language that is contained in § 229.140(d) of the final rule to establish a fixed interval for the alerter warning indication when operating at speeds below 20 mph. To make this change, FRA is revising the requirement for locomotives operating at speeds under 20 mph to 120 seconds, with the same 10 second tolerance that is provided for in this section for all other speeds. Please see the preceding discussion in section B of the Issues Raised by Petitions for Reconsideration for background information related to this modification.

Section 229.303Applicability

The language contained in § 229.303 is being modified to clarify that certain products are excluded from the locomotive electronics requirements. The language is being modified by replacing the phrase “placed in service” that is contained in §§ 229.303(a)(1) and (a)(2) with the phrase “fully developed.” Please see the preceding discussion in section (A)(1) of the Issues Raised by Petitions for Reconsideration for background information related to this modification. In addition, FRA is extending the date for railroads and vendors to identify all products that are under development as identified in paragraph (a)(2) of this section to FRA from October 9, 2012 to February 9,2013. The substantive requirement is not being changed, as the requirements that govern which products can be properly identified under paragraph (a)(2) of this section remain unchanged. Only the date by which the products must be identified and submitted to FRA is being changed.

Section 229.305Definitions

Section 229.305 of the final rule is being amended by removing the definition for the term “new or next-generation locomotive.” Please see the preceding discussion in section (A)(2) of the Issues Raised by Petitions for Reconsideration for background information related to this modification.

This action has been evaluated in accordance with existing policies and procedures and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures.See44 FR 11034; February 26, 1979. The original final rule was determined to be non-significant. Furthermore, the amendments contained in this action are not considered significant because they generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule.

These amendments and clarifications are in response to commenters petitions for reconsideration and will provide greater flexibility in the implementation and enforcement of this final rule. The amendments modify the remote control locomotive provisions and also Subpart E. Both of these are not mandatory requirements to operate locomotives, and therefore will not cause a change in FRA's estimated costs in the final rule's regulatory impact analysis (RIA). In addition, there is an amendment that modifies section 229.140 for locomotive alerters. This amendment is in response to a commenter's petition and should improve compliance with the alerter requirement in the final rule. This change to the alerter timing interval below 20 mph would result in a modest cost saving to the industry, particularly in regard to the January 1, 2017, full implementation requirement because it makes more currently installed alerters compliant, thus reducing the number to be modified. FRA does not believe that the amount of potential savings warrants modification of the RIA. There are amendments to the periodic inspection requirements in section 229.23 which are also in response to a commenter's petition. The amendment will have minimal economic impact on the railroads that are able to use the final rule's 184 day periodic inspection provision. Any impact it will have, will serve to decrease the estimated costs in the final rule's RIA. The amendment to section 229.29 is not a change in the air brake system calibration, maintenance, and testing requirements but rather a change in where and how the calibration is recorded on the locomotive's blue card.

In summary, FRA has concluded that these amendments will have a minimal net effect on FRA's original analysis of the costs and benefits associated with the final rule. Hence, FRA has not revised the final rule's RIA.

B. Regulatory Flexibility Act and Executive Order 13272

To ensure potential impacts of rules on small entities are properly considered, FRA developed this action and the original final rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601et seq.). Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies that this action would not have a significant economic impact on a substantial number of small entities.

The amendments contained in this action that modify provisions for the use of remote control locomotives and will not impact any small entities. Most small railroads do not use remote control locomotives and the use of remote control locomotives is permissive and not mandatory. The amendments to the periodic inspection requirements in § 229.23 would not negatively impact any small entities. This is due to that fact that the amendments to this section should reduce cost for a railroad that has locomotives that can utilize a longer,i.e.,184 day, period inspection. In addition, most, if not all, small railroads currently do not have locomotives that would qualify to utilize the longer periodic inspection period. The amendment to § 229.29 is not a change in the air brake system calibration, maintenance, and testing requirements but rather a change in where and how the calibration is recorded on the locomotive's blue card. There is one amendment on § 229.140 which adds a requirement to establish a “fixed interval” for the audible warning indication for locomotive alerters for speeds under 20 mph. This amendment will not impact any small railroad since many small railroads operate at speeds that do not require an alerter, and the amendment is granting a commenter's request. Finally the amendments to subpart E relate to clarification on the requirements for new advanced electronic locomotive control systems, which would be found on new locomotives. No small railroads purchase new locomotives that would have these systems on them. Accordingly, because the amendments contained in this action generally clarify requirements currently contained in the final rule, FRA has concluded that there are no substantial economic impacts on small entities resulting from this action.

C. Paperwork Reduction Act

FRA has carefully reviewed agency amendments to certain sections of this final rule in response to petitions for reconsideration. There are no changes to any of the final rule's information collection requirements and estimated burden published in the FR on April 9, 2012.See77 FR 21312. These information collection requirements and associated burden were approved by the Office of Management and Budget on November 21, 2012, under OMB No. 2130-0004, for the maximum time period.

D. Federalism Implications

FRA has analyzed this rule in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications.See64 FR 43255. This final rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. This final rule will not have federalism implications that impose any direct compliance costs on State and local governments.

This final rule could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically, the former Federal Railroad Safety Act of 1970 (former FRSA), repealed and recodified at 49 U.S.C. 20106, and the former Locomotive Boiler Inspection Act at 45 U.S.C. 22-34, repealed and recodified at 49 U.S.C. 20701-20703.See Kurnsv.Railroad Friction Products Corp.,132 S. Ct. 1261 (2012); andNapierv.Atlantic Coast Line R.R.,272 U.S. 605 (1926).

E. International Trade Impact Assessment

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards.

This action is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

F. Environmental Impact

FRA has evaluated this action in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this action is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures.See64 FR 28547 (May 26, 1999).

In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this action that might trigger the need for a more detailed environmental review. As a result, FRA finds that this action is not a major Federal action significantly affecting the quality of the human environment.

G. Unfunded Mandates Reform Act of 1995

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $140,800,000 or more in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The action will not result in the expenditure, in the aggregate, of $140,800,000 or more in any one year, and thus preparation of such a statement is not required.

H. Energy Impact

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in theFederal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this action in accordance with Executive Order 13211. FRA has determined that this action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this action is not a “significant energy action” within the meaning of Executive Order 13211.

I. Privacy Act

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Seehttp://www.regulations.gov/#!privacy.Notice for the privacy notice of regulations.gov or interested parties may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477).

List of Subjects in 49 CFR Part 229

Locomotives, Railroad safety, Remote control locomotives.

The Rule

For the reasons discussed in the preamble, FRA amends part 229 of title 49 of the Code of Federal Regulations as follows:

PART 229—[AMENDED]1. The authority citation for part 229 continues to read as follows:Authority:

2. Section 229.15 is amended by revising paragraphs (a)(12)(xii) and (b)(4) to read as follows:§ 229.15Remote control locomotives.

(a) * * *

(12) * * *

(xii) Activate the audio indication of movement that is located on the RCL for a duration of at least 3 seconds; and

(b) * * *

(4) Each time an RCL is placed in service and at the first practical time after the start of each shift, but no more than 2 hours after the start of that shift, locomotives that utilize a positive train stop system, such as remote control pullback protection, shall perform a conditioning run over a track that the positive train stop system is being utilized on to ensure that the system functions as intended.

(2) Paper copies of electronic records and amendments to those records that may be necessary to document compliance with this part, shall be provided to FRA for inspection and copying upon request. Paper copies shall be provided to FRA no later than 15 days from the date the request is made; and,

(2) At least once each 33 days, the daily inspection required by § 229.21, shall be performed by a qualified mechanical inspector as defined by § 229.5. A record of the inspection that contains the name of the personperforming the inspection and the date that it was performed shall be maintained in the locomotive cab until the next periodic inspection is performed.

(h) The railroad shall maintain, and provide employees performing inspections under this section with, a list of the defects and repairs made on each locomotive since the date that the last inspection required by this section was performed;

5. Section 229.29 is amended by revising paragraph (g)(1) to read as follows:§ 229.29Air brake system calibration, maintenance, and testing.

(g) * * *

(1) The date of AFM indicator calibration shall be recorded and certified on Form F6180-49A.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Interim final rule; request for comments.

SUMMARY:

This interim final rule reopens a portion of the Georges Bank Closed Area to the harvest of Atlantic surfclams and ocean quahogs. The area has been closed since 1990 due to the presence of toxins known to cause paralytic shellfish poisoning. The reopening is based on a request from the Mid-Atlantic Fishery Management Council and the recent adoption of a testing protocol into the National Shellfish Sanitation Program.

DATES:

Effective January 1, 2013. Comments must be received by February 19, 2013.

ADDRESSES:

An environmental assessment (EA) was prepared for this action that describes the final action and other alternatives considered and provides an analysis of the impacts of the measures and alternatives. Copies of the EA are available on request from the NMFS Northeast Regional Administrator, John K. Bullard, 55 Great Republic Drive, Gloucester, MA 01930. The EA is also available online athttp://www.nero.noaa.gov/.You may submit comments on this document, identified by NOAA-NMFS-2012-0121 by any of the following methods:

•Electronic Submission:Submit all electronic public comments via the Federal e-Rulemaking Portalwww.regulations.gov.To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2012-0121 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.

•Mail:Submit written comments to John K. Bullard, Regional Administrator, Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930-2298. Mark on the outside of the envelope, “Comments on GB PSP Closed Area Reopening.”

•Fax:(978) 281-9135; Attn: Jason Berthiaume.

Instructions:Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing onwww.regulations.govwithout change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

The Georges Bank (GB) Closed Area, located in the Exclusive Economic Zone east of 69°00′ W. long. and south of 42°20′ N. lat., has been closed to the harvest of surfclams and ocean quahogs since 1990 due to red tide blooms that cause paralytic shellfish poisoning (PSP). The closure was implemented based on advice from the U.S. Food and Drug Administration (FDA) after samples tested positive for toxins (saxitoxins) that cause PSP. These toxins are produced by the algaAlexandrium fundyense,which can form blooms commonly referred to as red tides, or harmful algal blooms, and can accumulate in water column filter-feeding shellfish. Shellfish contaminated with the toxin, if eaten in large enough quantity, can cause illness or death in humans.

Due to inadequate testing or monitoring of the water and shellfishwithin the area for the presence of PSP-causing toxins, the closure was made permanent in 1999, under Amendment 12 to the Atlantic Surfclam and Ocean Quahog Fishery Management Plan (FMP). Since the implementation of the closure, NOAA's National Ocean Service has provided grants to the FDA, the states of Maine, New Hampshire, and Massachusetts, and a clam industry representative to collect water and shellfish samples from Federal waters off southern New England. NMFS has also issued exempted fishing permits (EFPs) since 2008 to surfclam and ocean quahog vessels to conduct research in the closure area. Testing of clams on GB by the FDA in cooperation with NMFS and the fishing industry under the EFPs demonstrate that PSP toxin levels have been well below the regulatory limit established for public health safety (FDA 2010). The FDA and NMFS also developed a Protocol for Onboard Screening and Dockside Testing in Molluscan Shellfish (the protocol) that is designed to test and verify that clams harvested from GB are safe. The protocol was formally adopted into the National Shellfish Sanitation Program at the October 2011 Interstate Shellfish Sanitation Conference.

On June 30, 2010, NMFS published a similar proposal in theFederal Register(75 FR 37745) to re-open a portion of the GB Closed Area. This proposed rule was later withdrawn due to public comments that opposed reopening the GB Closed Area without having a testing protocol in place. Now that the protocol has been formally adopted, NMFS is reopening a portion of the GB Closed Area with the requirement that the protocol be used on all fishing trips into the area.

This action also implements specific reporting requirements for the reopened area. To access the reopened area, a vessel must obtain a letter of authorization (LOA) from NMFS. The LOA outlines the harvesting requirements for the reopened area; by obtaining the LOA, a vessel acknowledges and agrees to the terms and conditions of the protocol and the LOA. Signing up for an LOA also allows NMFS to know which vessels are eligible to fish in the reopened area. NMFS has the authority to invalidate the LOA, should a vessel not comply with the requirements for harvesting in the reopened area. NMFS has also developed new vessel monitoring system (VMS) codes for the area. These codes will allow NMFS and enforcement agencies to readily identify a vessel's intent to fish in the area. The new VMS codes and the LOA will provide NMFS with additional oversight tools to assist enforcement and monitoring efforts in order to ensure public health and safety.

Since research began in the area in 2008, no PSP toxin measurements have been recorded above regulatory limits, and PSP toxin monitoring will be conducted under the terms of the protocol for all trips into the area. NMFS retains the authority to close any area to harvesting of surfclams and ocean quahogs to prevent contaminated shellfish from entering the market. Any future closures or openings within the GB Closed Area will be based upon PSP toxin testing results conducted under the terms of the protocol, the advice of the FDA, and the most current information available.

NMFS reopens the identified portion of the GB Closed Area to the harvest of surfclams and ocean quahogs, under its authority at § 648.76(c). However, we will continue to defer to the FDA in matters of public health and, should we receive new data or advice from the FDA, we may have to reconsider the status of any reopened areas or the need for additional closures.

Changes From Proposed Rule

NMFS published a proposed rule for this action in theFederal Registeron August 31, 2012 (77 FR 53164), with a 30-day comment period that ended on October 1, 2012. In the proposed rule, three alternatives were identified: Alternative A was the largest of the three, and encompassed the entire area between Closed Area I and Closed Area II; Alternative B was smaller than Alternative A area and encompassed the area defined under the 2012 EFP; Alternative C was the smallest of the three areas, and is known as the Cultivator Shoals area. Due to comments received on the proposed rule, the area being reopened with this interim final rule represents a slight modification to the Alternative A area. The New England Fishery Management Council (NEFMC) submitted a comment informing NMFS that its Habitat Oversight Committee is currently developing Essential Fish Habitat (EFH) Omnibus Amendment 2, which may include potential habitat management areas (HMAs) that, if implemented, would spatially overlap with the areas initially proposed for reopening. Because of this, NMFS has modified the area that will be reopened with this interim final rule to ensure that there is no overlap with any portion of the potential HMAs. This will allow the NEFMC to continue development of the habitat amendment without additional risk to the potential new HMAs, while also allowing the Atlantic surfclam/ocean quahog fleet to access most of the proposed area. This will prevent any additional Atlantic surfclam/ocean quahog effort from being introduced into the potential HMAs while they are still being developed. After the habitat amendment has been completed, and after NMFS reviews any additional comments on the measures in this interim final rule, NMFS may reconsider the reopened area and will publish a final rule in theFederal Registerimplementing the final area. In the meantime, the surfclam and ocean quahog fishery can access the majority of the area originally proposed, and the areas of concern to the NEFMC will remain closed pending further comments and/or actions by the NEFMC.

The area being reopened is defined in the table below and illustrated in the map and the remaining portion of the GB Closed Area will remain closed.

This interim final rule also includes a clarifying prohibition that was not included in the proposed rule. The additional regulation prohibits the harvest of Atlantic surfclams or ocean quahogs from the reopened portion of the GB Closed Area without being in compliance with the protocol, LOA, and VMS requirements.

Comments and Responses

NMFS received 19 comments on the proposed rule. One comment opposed reopening any portion of the GB Closed Area, but provided no factual basis for the opposition. Eleven comments were in support of reopening the Alternative A area; three were in support of the Alternative C area; and no comments were received specifically supporting the Alternative B area. Generally, all comments received were in support of reopening a portion of the GB Closed Area and were also in support of requiring the testing protocol and corresponding reporting requirements on all trips into the reopened area.

Comment 1:One of the comments voiced support for reopening the Alternative C area, but provided no rationale for this support, and also wanted to ensure a mechanism exists to prohibit access to the reopened area should a vessel not follow the protocol.

Response:With this action, NMFS is also implementing measures that allow for additional oversight of vessels harvesting in the reopened area including mechanisms to control and monitor access. A vessel that wishes to harvest from the reopened areas must obtain an LOA from NMFS. The LOA explicitly outlines the harvesting requirements for the reopened area and by obtaining the LOA the vessel is acknowledging and agreeing to the terms and conditions of the protocol and the LOA, including NMFS's ability to invalidate the LOA, should the vessel not comply with the requirements. Further, NMFS has also developed new VMS codes that are specific to the area. With these codes, NMFS will able to readily identify a vessel's intent to fish in the area, requiring the vessel to follow the terms and conditions of the protocol. The new VMS codes will help facilitate enforcement and perform monitoring of the area. Thus, with the protocol, the LOA, and the new VMS codes, NMFS has the necessary mechanisms available to appropriately monitor and enforce the provisions in this rule, including prohibiting a vessel's access to the area, should it become necessary.

Comment 2:Cote Fisheries, Inc., and the Atlantic Offshore Lobstermen's Association provided comments on behalf of the lobster industry in support of the Alternative C area due to concerns regarding potential gear conflicts within the larger Alternative A area. The commenters also raised concerns that hydraulic dredge fishing gear could bycatch soft shell and egg-bearing lobsters. The commenters state that lobster fishing takes place in the southern portion of the area during the summer and autumn months and request that the reopened area should only be reopened seasonally to prevent gear conflicts. Additionally, the commenter expressed concerns about the reopened area frequently closing and reopening, and state that this will encourage derby style fishing and create an unpredictable fishery that make it difficult for fixed gear fisherman tooperate with little advanced notice of future closures or reopening.

Response:NMFS acknowledges that gear conflicts between fixed and mobile gear fisherman are ongoing and sharing access to an area can be difficult to coordinate. However, this area is already open to all other types of bottom-tending mobile fishing gear and NMFS does not anticipate that the additional effort will result in substantial additional gear conflicts. Further, surfclam and ocean quahog vessels have been operating in this area under an EFP since 2008, and NMFS is not aware of any ongoing gear conflicts in the area. Reopening the area on a seasonal basis, based on lobster fishing activity, would be inequitable for the surfclam and ocean quahog fleet and could create safety-at-sea concerns. If NMFS were to implement the reopening on a seasonal basis as requested, the surfclam and ocean quahog fleet would be limited to harvesting in the area in the winter and spring, at a time when the weather offshore is subject to frequent change and is often unsafe for commercial fishing. Further, NMFS does not anticipate that this reopening will create a derby style fishery. The surfclam and ocean quahog fishery is largely market driven and it is unlikely that the market would allow for the flood of product produced by a derby-type fishery. Additionally, there is significant coordination between processors and harvesters in the surfclam and ocean quahog fishery and this would also likely prevent a derby-style fishery. Because the majority of the product in the surfclam and ocean quahog fishery is processed, this fishery typically operates and benefits by supplying the processers with steady and consistent quantities of surfclams and/or ocean quahogs. Although NMFS has the authority to implement future openings or closing, it is not anticipated that the area will be frequently closed and reopened. The protocol was designed to prevent this, but NMFS must retain the authority to close and reopen areas based on environmental conditions, should problems arise beyond what can be handled by the protocol. Therefore, we do not anticipate frequent closures and reopening that would create a derby-style fishery leading to excessive gear conflicts.

As for the lobster bycatch concern, while clam dredge gear may interact to some extent with lobsters, documented incidences of bycatch are very low. Clam dredge gear is towed at very low speeds, allowing most species to avoid the gear, and the unique way clam dredge gear operates typically yields little bycatch. The 1997 NMFS Northeast Fisheries Science Center survey results support that the surfclam and ocean quahog fishery is considered a clean fishery with regard to incidental catch because the target species comprises well over 80 percent of the catch. No fish were caught during the survey, and only sea scallops, representing other commercially desirable invertebrates, were caught at around 0.5 percent of the total catch. The remaining non-target species caught included a variety of benthic invertebrates, including a variety of crabs, other bivalves, snails, and starfish, among them rock crab, Jonah crab, several species of whelks, and horseshoe crabs. Thus, it is unlikely that reopening the area will produce substantial bycatch of lobster resulting in a negative impact to the fishery.

Comment 3:Two of the comments in support of reopening the Alternative A area were also concerned that NMFS should not have the authority to close or reopen areas based on PSP testing results. The commenters explain that the protocol was designed to prevent frequent and routine closures and reopenings that would result in excessive administrative burden, unnecessarily extending the time between closures and reopenings, which would restrict harvesting.

Response:NMFS understands how the protocol operates and also recognizes the burden involved with the administrative process of closures and reopening, but these processes are necessary precautions to safeguard public health. This authority existed prior to this rulemaking and is part of the Atlantic Surfclam and Ocean Quahog FMP. This is not a new authority being implemented as part of this action. The Regional Administrator's authority to close or reopen an area due to the presence of PSP is not specific to this area, and this authority is necessary should PSP blooms occur in this or other areas. We do not anticipate that routine and frequent closures and openings will occur as a result of this action; rather, this authority is intended for more large-scale and long-term closures. NMFS will continue to defer to the FDA in matters of the public health and, should we receive advice from the FDA, it may be necessary for NMFS to close or reopen any area to the harvesting of surfclams and ocean quahogs to prevent contaminated shellfish from entering the market. It is not NMFS' intention to disregard the effectiveness of the protocol and frequently implement routine closures and reopening; however, NMFS must maintain this authority to protect public health.

Comment 4:The Massachusetts Department of Public Health, Bureau of Environmental Health, and the Massachusetts Department of Fish and Game, Division of Marine Fisheries, jointly serve as the State Shellfish Control Authority (SSCA) in Massachusetts and submitted a comment in support of Alternative A, provided the SSCA continues to have the flexibility to develop individual agreements with harvesters that may be more stringent than the minimum requirements of the testing protocol.

Response:The protocol that this action is based on will continue to include this flexibility, and thus the Massachusetts SSCA can continue to require additional testing that aligns with its individual agreements.

Comment 5:The NEFMC submitted a comment informing us that its Habitat Oversight Committee is currently developing an Essential Fish Habitat Omnibus Amendment, which may include potential HMAs that, if implemented, would spatially overlap with the areas proposed for reopening. The NEFMC also requested that we extend the comment period on the proposed rule for an additional 60 days to allow them time compose a more formal comment. Oceana also submitted a similar comment requesting that the NEFMC be consulted in this matter.

Response:Due to this comment and the similar comment received from Oceana, NMFS has modified the area that will be reopened through this interim final rule to ensure that there is no overlap with any portion of the potential HMAs. This will also prevent any additional Atlantic surfclam/ocean quahog effort from being introduced into the potential HMAs while they are still being developed. However, NMFS chose not to extend the proposed rule comment period for an additional 60 days. The MAFMC and the surfclam and ocean quahog industry has requested that this area be reopened by the start of the fishing year on January 1, 2013, and extending the comment period for an additional 60 days would not allow sufficient time to implement this action by January 1. To allow the habitat amendment to be completed, while also allowing the Atlantic surfclam/ocean quahog fleet to access the reopened area, NMFS is publishing this action as an interim final rule, which allows for an additional comment period after the modified area is reopened. After the habitat amendment has been completed, and after NMFS reviews any additional comments on the measures in this interim final rule, NMFS mayreconsider the reopened area and will publish a final rule in theFederal Registerimplementing the final area.

Comment 6:Oceana provided a comment that does not directly oppose any of the area alternatives, but raised a number of concerns. They stated that NMFS does not have the authority to implement this action, and that the action should have been initiated by the MAFMC and should include the entire Council process. The commenter also alleged that NMFS intentionally placed the 30-day comment period between two Council meetings, which prevented the Councils or their committees from commenting.

Oceana also requested that the National Environmental Policy Act (NEPA) analysis accompanying this action be an environmental impact statement (EIS) rather than an EA, stating that NEPA requires that all significant actions go through the public comment, scrutiny, and analysis of an EIS. Their rationale for this is that hydraulic clam dredge fishing gear is among the most destructive gear types and will impact EFH as well as the existing fisheries on GB. The commenter also stated that, because Atlantic surfclams and ocean quahog resources are abundant on GB, the resulting high catch rates will impact the administration of the fishery, including how the fishery is prosecuted, the quota specifications, and overfishing definitions.

Response:In regards to the authority that NMFS is using to take this action, Oceana's comment broadly cites the regulations at § 648.76(c), but their comment quotes the regulations at § 648.76(c)(2), which pertain only to NMFS's authority in implementing short-term emergency closures to prevent adverse effects to public health. However, the authority for this action is found at § 648.76(c)(1). This section pertains to the process for reopening areas and also provides the Regional Administrator with the authority to close or reopen an area provided NMFS publish aFederal Registernotice with a 30-day comment period. NMFS published a proposed rule for this action in theFederal Registeron August 31, 2012 (77 FR 53164), with a 30-day comment period that ended on October 1, 2012. Therefore, NMFS is authorized to take this action separate from the MAFMC under the Regional Administrator's authority at § 648.76(c)(1). In fact, this action was initiated at the specific request of the MAFMC. Further, the comment period for this action was not deliberately placed between Council meetings. To meet the January 1, 2013, deadline for this action, as requested by the industry and the MAFMC, the comment period needed to be initiated as soon as the proposed rule was fully developed. The 30-day comment period for this proposed rule is the typical length of a comment period for FMP frameworks and amendments. The NEFMC did in fact provide comment on the proposed rule, and the area being reopened is based on the NEFMC's comment.

In response to Oceana's request to complete an EIS rather than an EA, NMFS does not agree that an EIS is necessary for this action. The EA completed for this action is fully compliant with the applicable NEPA requirements and the analysis resulted in a finding of no significant impact, consistent with all applicable guidance and the regulations implementing NEPA; therefore, an EIS is not required and none has been prepared. The commenter's concerns are all addressed in the EA and are also discussed below.

Alternative A has been revised in response to comments received. It excludes the potential Georges Shoal Habitat Areas, which were previously included in the draft EA, as well as Closed Area I and Closed Area II. In regards to Oceana's concern about impacts to other fisheries that occur on GB, the Atlantic surfclam and ocean quahog fishery is considered a clean fishery because the target species comprise well over 80 percent of the catches. Based upon scientific surveys, bycatch typically consists of scallops and other benthic invertebrates. The EA found that reopening the area will result in a net reduction of bycatch, temporarily, for the entire fishery due to the fewer dredges and shorter dredge time anticipated in an area of high biomass such as GB. This fishery is managed under an IFQ, so total fishing effort is capped by the IFQ allocated to the fishery. Because there would be no increase in harvesting permitted, reopening the area would have negligible impacts to the non-target and bycatch species. It is, in addition, highly unlikely that this action will cause any additional gear conflicts with other types of mobile gear, but NMFS acknowledges that gear conflicts between fixed and mobile gear fishermen can be challenging to resolve. However, this area is open already to all other types of bottom-tending mobile gear, including scallop dredges and otter trawls, and NMFS does not anticipate that the additional effort will result in substantial additional gear conflicts with fixed gear fishermen. Further, several surfclam/ocean quahog vessels have been operating in this area under an EFP since 2008, and NMFS is not aware of any ongoing gear conflicts in the area.

Concerning impacts to EFH from hydraulic clam dredge gear, the EA contains a thorough description of hydraulic dredge gear, including a detailed analysis of the impacts to EFH. Other types of bottom-tending gear are currently also used in the subject area, including scallop dredges, trawls, sink gill nets, longlines, pots, and traps. Most of the area for clam dredging where the fishing activity is expected to be concentrated is located in a relatively shallow (30-60 m) part of GB that is routinely highly disturbed by strong tidal currents and wave action from storms. Published studies of the effects of hydraulic clam dredges in high-energy, sandy, habitats, such as those where clam fishing occurs, indicate that, in this type of environment, the affected physical and biological features of the seafloor can be expected to recover from the impacts of this gear in less than a year, and can actually recover within a matter of a few days or months. For this reason, it was determined that the use of this gear would not have significant impacts on EFH in the affected area, because the impacts are minimal or temporary (i.e., ones that are limited in duration and that allow the particular environment to recover without measurable impact). For these same reasons (i.e., because this habitat is highly energetic and recovers relatively quickly), the cumulative impacts from the existing use of bottom trawling and scallop dredging gear together with the expected addition of hydraulic clam dredge gear is also not expected to be significant.

In deeper water, in the southern part of the Alternative A area, habitat recovery times may be longer and the habitat impacts may be more substantial. In addition, because the deeper, southern portion of this area is currently subjected to some bottom trawling and scallop dredging, there could be some cumulative impacts resulting from the three gears being used together in this area. However, because the biomass of surfclams and ocean quahogs is much higher on GB than on the traditional clam fishing grounds in the Mid-Atlantic, hydraulic dredge vessels that move from these grounds to GB to take advantage of the higher concentrations of clams would require less fishing time to achieve their catch quotas and, as a result, the cumulative area of seafloor swept throughout the range of the fishery would very likely be substantially reduced. The positive effect of the net reduction in clam dredging effort would, in all likelihood, mitigate any cumulative impacts ofusing all three mobile, bottom-tending gears in the fairly small southern portion of the area. Thus, because quotas are not changing as a result of this action and because catch rates on GB exceed those in the Mid-Atlantic, any shift of clam dredging effort on to GB is expected overall to minimize any adverse direct, indirect, or cumulative impacts of this action on EFH. This conclusion supports a FONSI and, therefore, an EIS is not required. Further analysis of the impacts to the physical environment and habitat including EFH, are discussed at length in sections 5.0 and 6.0 of the EA prepared for this action.

NMFS acknowledges that reopening a portion of the revised GB Closed Area may cause some fundamental shifts in the administration and operations of the fishery; however, the EA prepared for this action includes these considerations in the economic analysis. The area being reopened with this rule is not expected to have an adverse impact on the economy. The reopened area provides a larger area open to the harvest of surfclams and ocean quahogs. In addition, the fishery is managed under an individual transferable quota, and this action does not change the quota. Furthermore, the amount of surfclams and ocean quahogs harvested in the fishery is largely driven by market demand; therefore, it is unlikely that there will be a substantial increase in landings and revenue. The entire allocated quota available for surfclams has not been harvested since 2001. In fishing year 2011, the quota harvested for surfclams and ocean quahog was the lowest to date, 71 percent and 52 percent, respectively. This is another indicator that the fishery is market-limited. Overall, the reopened area is expected to provide a positive economic impact due to the increased area and target species biomass available to harvest surfclam and ocean quahogs, but, because overall catch is not increasing, it is not expected that the positive economic impact will be substantial.

The majority of surfclams harvested in Federal waters are landed in New Jersey and trucked to Delaware for processing. New Jersey, however, has already authorized landings of clams harvested from the GB area through an EFP that NMFS issued. The EFP authorizes vessels to participate in shellfish harvesting to continue to test the recently approved sampling protocol that was developed by state and Federal regulatory agencies to test for presence of saxitoxins in shellfish. Since New Jersey, Delaware, Massachusetts, and Maine have already authorized landings and processing of clams harvested from the revised GB Closed Area, this action is not expected to have a significant impact on major landing ports and processing plants.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the Atlantic Surfclam and Ocean Quahog FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

Pursuant to the Administrative Procedures Act (APA), 5 U.S.C. 553(d)(1), NMFS waives the 30-day delay in effectiveness of this rule because it is a substantive rule that relieves a restriction. This final rule will reopen an area that has been closed to the harvest of surfclams and ocean quahogs since 1990 due to red tide blooms that cause PSP. Because recent testing in the GB Closed Area has demonstrated that PSP toxin levels were well below the regulatory limit established for public health and safety, continued closure of the area is not necessary and could unnecessarily restrict Atlantic surfclam and ocean quahog fishing. Furthermore, NMFS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3). The GB Closed Area has caused harvesting to be limited to the Mid-Atlantic, where Atlantic surfclam and ocean quahog stocks have recently become less abundant. A 30-day delay in effectiveness would continue to prohibit harvest from the GB Closed Area and would continue to put pressure on Mid-Atlantic stocks. Waiving the 30-day delay would allow the GB Closed Area to be reopened sooner, which could relieve fishing pressure on southern stocks and would allow for greater distribution of Atlantic surfclam and ocean quahog harvest effort in the region. We also received public comment on the proposed rule for this action that fishing is only being continued in the Mid-Atlantic region to maintain the market, and vessels may no longer be profiting. Thus, a delay in effectiveness would continue to limit vessels to harvesting in the Mid-Atlantic region and could result in continued loss of revenue for the Atlantic surfclam and ocean quahog fishing fleet.

Moreover, the industry and the MAFMC have requested that the reopening become effective by the start of the 2013 Atlantic surfclam and ocean quahog fishing year on January 1, 2013. A 30-day delay in effectiveness would result in this action not being implemented by January 1, as requested. Because the industry and MAFMC have requested that the area be reopened by January 1, regulated entities are aware of this action and have likely already begun preparing for the area to be reopened on January 1. Therefore, a 30-day delay in effectiveness would not serve any beneficial purpose.

The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was provided in the proposed rule that was published on August 31, 2012 (77 FR 53163) and is not repeated here. No comments were received on this certification and no new information has been obtained that would change this determination. As a result, a final regulatory flexibility analysis is not required and none has been prepared.

NMFS prepared an EA for this action that analyzes the impacts of this rule. A copy of the EA is available from the Federal e-Rulemaking portalhttp://www.regulations.gov.Type “NOAA-NMFS-2012-0121” in the Enter Keyword or ID field and click search. A copy of the EA is also available upon request from the NMFS Northeast Regional Administrator, John K. Bullard (seeADDRESSES).

Reporting, Recordkeeping, and Other Compliance Requirements

This final rule contains reporting and recordkeeping requirements and associated information collections subject to the Paperwork Reduction Act (PRA) that have been previously approved by OMB under control numbers 0648-0202 and 0648-0240. Measures implemented by this final rule include provisions that require either new or revised collection-of-information requirements. The protocol includes a detailed procedure outlining how shellfish are to be harvested, tested, and handled. The PSP testing protocol includes the following requirements that require analysis under the Paperwork Reduction Act: Submission of concurrence from the state of landing; maintain and submit harvest records; compile and submit laboratory results; create and maintain a written onboard lot segregation plan; and provide notification prior to unloading.

Additionally, to monitor and control the harvest of surfclams and oceanquahogs from the area, and to ensure vessels adhere to the protocol, vessels fishing in the area are required to apply for and obtain a LOA from NMFS. The LOA will help to ensure that vessels are adhering to the regulations for harvesting within the area and provides a mechanism for NMFS to restrict harvesting in the area should a vessel not comply with the terms and conditions of the LOA and/or the PSP testing protocol. The full protocol is available for viewing atwww.nero.noaa.gov/sfd/clams/ApprovedProtocol.pdf.

In regards to the requirement to obtain an LOA, in 2011, there were 47 Federal open-access surfclam and/or ocean quahog permitted vessels that landed surfclams and/or ocean quahogs that may wish to fish in the area proposed to be reopened. Each vessel may apply up to once a year, for a maximum of 47 applications. It is expected that each application will take 5 min to complete, for a fleet maximum of 4 hr. There is no additional public cost associated with this change as the application will be submitted with the previously existing annual permit renewal package.

In regards to the information collection required under the protocol, if all of the permitted vessels in 2011 fished in the area, there would be a total of 47 entities, as well as 11 states, that would be required to adhere to the terms and conditions of the PSP testing protocol. While the PSP testing protocol outlines what is required, there will likely be differences in the complexity of the documents as well as varying methods of submission. For this PRA analysis, it is assumed that the traditional method of submission will be used, physical mail at 45 cents per submission; however, it is likely that many submissions will be completed electronically and, therefore, the overall cost would be reduced.

The testing protocol requires numerous elements that contain collection of information requirements, including elements that are submitted to NMFS, as well as to state and private entities. The submission of concurrence from state of landing element is required only of the state, which total 11 entities. This submission will be in the form of an annual written letter, with a total time burden estimate of 11 hr (11 submissions × 1 hr) and would cost $5 (11 submissions × $0.45).

The remainder of the requirements in the protocol apply to individual vessels, and is based on the maximum number of trips that occurred in the area in 2011 (46 trips). Three of these elements require document submission—one of which is an annual submission, and the other two that are required on each trip. The result is 4,370 submissions (((47 × 46) × 2) + 46), with a total public cost burden of $1,967 (4,370 × $0.45). The offload notification requirement does not impose any additional costs, as the notification will be completed through a pre-existing email or cellular phone account and is not required to be submitted in writing.

It is estimated that both the requirement to submit and maintain harvest records and compile and submit laboratory test results would take 30 min each to complete. Based on the number of anticipated trips into the area, there would be 4,324 submissions and a public burden of 2,162 hr (4,324 submissions × 30 min). The element to create and maintain a written onboard lot segregation plan is required annually and will take approximately 60 min to complete for a public burden of 47 hr (47 submissions × 1 hr). The notification element is required on each trip and is estimated to take 5 min per notification, resulting in 180 hr of burden (2,162 notifications × 5 min). The total resulting time burden to the public from all of the requirements to fish in the reopened portion of the GB Closed Area is 2,404 hr (4 + 11 + 2,162 + 47 + 180).

These estimates include the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES1. The authority citation for part 648 continues to read as follows:Authority:

16 U.S.C. 1801et seq.

2. In § 648.14, paragraph (a)(10)(v) is added to read as follows:§ 648.14Prohibitions.

(a) * * *

(10) * * *

(v) Fish for, harvest, catch, possess, or attempt to fish for, harvest, catch, or possess Atlantic surfclams and ocean quahogs from the reopened portion of the Georges Bank Closed Area, as defined in § 648.76(a)(4), unless issued a Letter of Authorization, and fishing under the appropriate VMS declaration and under the terms and conditions of the PSP testing protocol, as specified in § 648.76(a)(4)(i).

(4)Georges Bank.The paralytic shellfish poisoning (PSP) contaminated area, which is located on Georges Bank, and is located east of 69° W. long., and south of 42°20′ N. lat. is closed to the harvest of surfclams and ocean quahogs. A portion of the Georges Bank Closed Area is reopened to harvest surfclams and ocean quahogs provided the vessel complies with the requirements specified in paragraph (a)(4)(i) of this section. The reopened portion of the Georges Bank Closed Area is defined by straight lines connecting the following points in the order stated:

(i)Requirements for Vessels Fishing in the Reopened Portion of the Georges Bank Closed Area.A vessel may fish in the open portion of the Georges Bank Closed Area as specified in this paragraph (a)(4), provided it complies with the following terms and conditions:

(A) A valid letter of authorization issued by the Regional Administrator must be onboard the vessel; and

(B) The vessel must adhere to the terms and conditions of the PSP testing protocol as adopted into the National Shellfish Sanitation Program by the Interstate Shellfish Sanitation Conference. All surfclams and ocean quahogs harvested from the area mustbe handled in accordance with the terms and conditions of the protocol from the first point of harvest through completion of testing and release by the State Shellfish Control Authority as required by the PSP testing protocol; and

(C) Prior to leaving port at the start of a fishing trip, the vessel's owner or operator must declare its intent to fish in the area through the vessel's vessel monitoring system.

The U.S. Nuclear Regulatory Commission (NRC) has received a petition for rulemaking from the Commonwealth of Massachusetts (Commonwealth or petitioner) requesting that the NRC rescind its regulations excluding consideration of spent fuel pool storage impacts from license renewal environmental review. The petition was filed on June 2, 2011, with the NRC's Atomic Safety Licensing Board (ASLB) in conjunction with a request for a waiver of the NRC's spent fuel pool exclusion regulations. The petitioner requested that, if the ASLB rejected the Commonwealth's waiver petition, the NRC initiate a rulemaking. On November 28, 2011, the ASLB denied the Commonwealth's waiver petition, and on March 8, 2012, in a Commission Memorandum and Order, the petition for rulemaking was referred to NRC staff. The NRC is not requesting public comment period on this petition at this time.

ADDRESSES:

Please refer to Docket ID NRC-2012-0215 when contacting the NRC about the availability of information for this petition. You may access information related to this petition, which the NRC possesses and are publicly available, by any of the following methods:

•NRC's Agencywide Documents Access and Management System (ADAMS):You may access publicly available documents online in the NRC Library athttp://www.nrc.gov/reading-rm/adams.html.To begin the search, select“Begin Web-based ADAMS Search.”For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email topdr.resource@nrc.gov.The ADAMS accession number for each document referenced in this notice (if that document is available in ADAMS) is provided the first time that a document is referenced.

The Commonwealth of Massachusetts, Office of the Attorney General, Environmental Protection Division has filed this petition (ADAMS Accession No. ML12254A005) with the NRC.

II. The Petition

The petitioner requests that the NRC institute a rulemaking to rescind the regulations excluding consideration of spent fuel storage impacts from license renewal environmental review. Specifically, the petitioner requests that the spent fuel pool exclusion regulations in § 51.71(d) of Title 10 of theCode of Federal Regulations(10 CFR) and appendix B to subpart A of 10 CFR part 51, be rescinded because these regulations “generically classify the environmental impacts of high-density pool storage of spent fuel as insignificant and thereby permit their exclusion from consideration in environmental impact statements (EISs) for renewal of nuclear power plant operating licenses.”

The petitioner argues that “the appropriate vehicle for revising the conclusions that underlie the spent fuel pool exclusion regulations is a waiver [of 10 CFR 51.71(d) and 10 CFR part 51 subpart A, appendix B], because * * * many of the implications of the Fukushima accident for the Pilgrim NPP license renewal proceeding are site specific.” The petition continues: “[i]n the alternative, in the event that the ASLB denies the Commonwealth's Waiver Petition, pursuant to 10 CFR 2.802(a), the Commonwealth asks the NRC to rescind the spent fuel pool exclusion regulations across the board, in a rulemaking.” The petition specifically states that, if the ASLB determines that a waiver is not justified, “the Secretary should rescind the spent fuel exclusion regulations on a generic basis.” The petitioner states that rescinding the spent fuel pool exclusion regulations is necessary to challenge “the adequacy of the environmental impact analysis and severe accident mitigation alternatives (SAMA) analysis performed by Entergy Corp. and the NRC in support of their proposal to re-license the Pilgrim nuclear power plant (NPP), in light of significant new information revealed by the Fukushima accident.” The petitioner states that “significant new information yielded by the Fukushima accident shows fundamental errors or oversights in the key environmental analyses relied on by the NRC for its generic designation of spent fuel storage impacts as insignificant. * * *” The petitioner further states that “[t]he purpose of the spent fuel pool exclusion regulations—to make a generic finding of no significant impact for all NPPs—would not be served where the Fukushima accident has demonstrated that environmental impacts of spent fuel storage are so significant and where the insights from the Fukushima accident have such a plant-specific application.”

In an ASLB Memorandum and Order dated November 28, 2011, the Commonwealth of Massachusetts's request for a waiver was denied (ADAMS Accession No. ML11332A152). Subsequently, in a Commission Memorandum and Order dated March 8, 2012, the Commonwealth's petition for rulemaking was referred to NRC staff for appropriate resolution (ADAMS Accession No. ML12068A187). NRC staff has determined that the Commonwealth's petition for rulemaking has met the basic requirements set forth in 10 CFR2.802(c). The petitioner has specified the regulations that it would like revoked. Additionally, the petitioner has stated its grounds for and interest in this action. Lastly, the petition sets forth the specific issues involved, provides views and arguments in favor of the petitioner's position, and provides relevant data to support the request to rescind 10 CFR 51.71(d) and 10 CFR part 51 subpart A, appendix B. Because the petitioner has satisfied the acceptance criteria in 10 CFR 2.802(c), the NRC has accepted, and will review the petition for rulemaking. The NRC is not requesting public comment on this petition at this time.

This action proposes special conditions for Airbus A350-900 series airplanes. These airplanes will have novel or unusual design features associated with flight envelope protection in icing and non-icing conditions that use low speed incidence protection and an alpha-floor function that automatically advances throttles whenever the airplane angle of attack reaches a predetermined value. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

Send your comments on or before February 4, 2013.

ADDRESSES:

Send comments identified by docket number FAA-2012-1207 using any of the following methods:

•Hand Delivery of Courier:Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 8 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

•Fax:Fax comments to Docket Operations at 202-493-2251.

Privacy:The FAA will post all comments it receives, without change, tohttp://regulations.gov,including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in theFederal Registerpublished on April 11, 2000 (65 FR 19477-19478), as well as athttp://DocketsInfo.dot.gov.

Docket:Background documents or comments received may be read athttp://www.regulations.govat any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

Background

On August 25, 2008, Airbus applied for a type certificate for their new A350-900 series airplane. Later, Airbus requested and the FAA approved an extension to the application for FAA type certification to June 28, 2009. The A350-900 series airplane has a conventional layout with twin wing-mounted Rolls-Royce Trent engines. It features a twin aisle 9-abreast economy class layout, and accommodates side-by-side placement of LD-3 containers in the cargo compartment. The basic A350-900 series airplane configuration accommodates 315 passengers in a standard two-class arrangement. The design cruise speed is Mach 0.85 with a Maximum Take-Off Weight of 602,000 lbs. Airbus proposes the A350-900 series airplane to be certified for extended operations (ETOPS) beyond 180 minutes at entry into service.

Type Certification Basis

Under title 14, Code of Federal Regulations (14 CFR) 21.17, Airbus must show that the A350-900 series airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-128.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the A350-900 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, A350-900 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part ofthe type-certification basis under § 21.17(a)(2).

The current airworthiness standards do not contain adequate safety standards for the unique features of the high incidence protection system and the alpha-floor system proposed for the Airbus A350-900 series airplanes. Part I of the following proposed special conditions are in lieu of §§ 25.103, 25.145(a), 25.145(b)(6), 25.201, 25.203, 25.207, and 25.1323(d). Part II is in lieu of §§ 25.21(g), 25.105, 25.107, 25.121, 25.123, 25.125, and 25.143.

Novel or Unusual Design Features

The Airbus A350-900 series airplanes will incorporate the following novel or unusual design features: Low speed high incidence protection and alpha-floor systems.

The A350-900 series airplanes will have a novel or unusual feature to accommodate the unique features of the high incidence protection and the alpha-floor systems. The high incidence protection system replaces the stall warning system during normal operating conditions by prohibiting the airplane from stalling. The high incidence protection system limits the angle of attack at which the airplane can be flown during normal low speed operation, impacts the longitudinal airplane handling characteristics, and cannot be over-ridden by the crew. The existing regulations do not provide adequate criteria to address this system.

The function of the alpha-floor system is to increase automatically the thrust on the operating engines under unusual circumstances where the airplane pitches to a predetermined high angle of attack or bank angle. The regulations do not provide adequate criteria to address this system.

Discussion

The current airworthiness standards do not contain adequate safety standards for the unique features of the high incidence protection system and the alpha-floor system proposed for Airbus A350-900 series airplanes. Special conditions are needed to account for these features. The high incidence protection system prevents the airplane from stalling and therefore, the stall warning system is not needed during normal flight conditions. However, during failure conditions (which are not shown to be extremely improbable), the requirements of Title 14 Code of Federal Regulations (14 CFR) §§ 25.203 and 25.207 apply, although slightly modified (i.e. the flight characteristics at the angle of attack for CLMAXmust be suitable in the traditional sense, and stall warning must be provided in a conventional manner).

The alpha-floor function automatically advances the throttles on the operating engines under flight circumstances of low speed if the airplane reaches a predetermined high angle of attack. This function is intended to provide increased climb capability.

These proposed special conditions are harmonized with the EASA Certification Review Items.

Applicability

As discussed above, these special conditions are applicable to Airbus A350-900 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on the Airbus A350-900 series airplane. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Proposed Special Conditions

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Airbus A350-900 series airplanes.

The current airworthiness standards do not contain adequate safety standards for the unique features of the high incidence protection system and the alpha-floor system proposed for the Airbus A350. Part I of the following proposed special conditions are in lieu of §§ 25.103, 25.145(a), 25.145(b)(6), 25.201, 25.203, 25.207, and 25.1323(d). Part II are in lieu of §§ 25.21(g), 25.105, 25.107, 25.121, 25.123, 25.125, and 25.143.

Special Conditions Part I—Stall Protection and Scheduled Operating Speeds—Note:In the following paragraphs, “In icing conditions” means with the ice accretions (relative to the relevant flight phase) as defined in 14 CFR part 25, amendment 121 appendix C.

Special Conditions Part I—Stall Protection and Scheduled Operating SpeedsForeword

In the following paragraphs, “In icing conditions” means with the ice accretions (relative to the relevant flight phase) as defined in 14 CFR part 25, amendment 121 appendix C.

1. Definitions

These Special Conditions addresses novel features of the A350-900 series airplane and uses terminology that does not appear in 14 CFR part 25.

These terms for the novel features addressed by these special conditions are the following:

—High incidence protection system: A system that operates directly and automatically on the airplane's flying controls to limit the maximum angle of attack that can be attained to a value below that at which an aerodynamic stall would occur.—Alpha-floor system: A system that automatically increases thrust on the operating engines when angle of attack increases through a particular value.—Alpha-limit: The maximum angle of attack at which the airplane stabilizes with the high incidence protection system operating and the longitudinal control held on its aft stop.—Vmin: The minimum steady flight speed in the airplane configuration under consideration with the high incidence protection system operating. See paragraph 3 of these Special Conditions.—Vmin1g: Vmincorrected to 1g conditions. See paragraph 3 of these Special Conditions. It is the minimum calibrated airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight when at an angle of attack not greater than that determined for Vmin.2. Capability and Reliability of the High Incidence Protection System

Those paragraphs of 14 CFR part 25 quoted in reference may be amended in accordance with these Special Conditions provided that acceptable capability and reliability of the high incidence protection system can be established by flight test, simulation, and analysis as appropriate. The capability and reliability required are as follows:

1—It shall not be possible during pilot induced maneuvers to encounter a stall and handling characteristics shall be acceptable, as required by section 5 of these Special Conditions.

2—The airplane shall be protected against stalling due to the effects of wind-shears and gusts at low speeds as required by section 6 of these Special Conditions.

3—The ability of the high incidence protection system to accommodate any reduction in stalling incidence must be verified in icing conditions.

4—The high incidence protection system must be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.

5—The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309.

3. Minimum Steady Flight Speed and Reference Stall Speed

In lieu of § 25.103, Minimum steady flight speed and Reference stall speed, we propose the following requirements:

(a) The minimum steady flight speed, Vmin, is the final stabilized calibrated airspeed obtained when the airplane is decelerated until the longitudinal control is on its stop in such a way that the entry rate does not exceed 1 knot per second.

(b) The minimum steady flight speed, Vmin, must be determined in icing and non-icing conditions with:

(1) The high incidence protection system operating normally.

(2) Idle thrust and alpha-floor system inhibited;

(3) All combinations of flaps setting and, landing gear position for which Vminis required to be determined;

(4) The weight used when VSRis being used as a factor to determine compliance with a required performance standard;

(5) The most unfavorable center of gravity allowable; and

(6) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(c) The one-g minimum steady flight speed, Vmin1g, is the minimum calibrated airspeed at which the airplane can develop a lift force (normal to the flight path) equal to its weight, while at an angle of attack not greater than that at which the minimum steady flight speed of sub-paragraph (a) was determined. It must be determined in icing and non icing conditions.

(d) The reference stall speed, VSR, is a calibrated airspeed defined by the applicant. VSRmay not be less than a 1-g stall speed. VSRmust be determined in non icing conditions and expressed as:

EP19DE12.016

(1) Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed;

(2) The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which VSRis being used;

(3) The weight used when VSRis being used as a factor to determine compliance with a required performance standard;

(4) The center of gravity position that results in the highest value of reference stall speed;

(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system, but not less than 1.13 VSRand not greater than 1.3 VSR;

(6) Alpha-floor system inhibited; and

(7) The High Incidence Protection System adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system.

(8) Starting from the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed one knot per second.

4. Stall Warning

In lieu of § 25.207 we propose the following requirements:

4.1Normal Operation

If the capabilities of the high incidence protection system are met, then the conditions of paragraph 2 aresatisfied. These conditions are equivalent safety to the intent of § 25.207, Stall Warning, so the provision of an additional, unique warning device is not required.

4.2High Incidence Protection System Failure

Following failures of the high incidence protection system, not shown to be extremely improbable, such that the capability of the system no longer satisfies items 1, 2 and 3 of paragraph 2, stall warning must be provided and must protect against encountering unacceptable characteristics and against encountering stall.

(a) Stall warning with the flaps and landing gear in any normal position must be clear and distinctive to the pilot and meet the requirements specified in paragraphs (d) and (e) below.

(b) Stall warning must also be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.

(c) The warning may be furnished either through the inherent aerodynamic qualities of the airplane or by a device that will give clearly distinguishable indications under expected conditions of flight. However a visual stall warning device that requires the attention of the crew within the cockpit is not acceptable by itself. If a warning device is used, it must provide a warning in each of the airplane configurations prescribed in paragraph (a) above and for the conditions prescribed below in paragraphs (d) and (e) below.

(d) In non icing conditions stall warning must meet the following requirements: Stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall in the following conditions:

(1) In power off straight deceleration not exceeding one knot per second to a speed 5 knots or 5 per cent CAS, whichever is greater, below the warning onset.

(2) In turning flight stall deceleration at entry rates up to 3 knots per second when recovery is initiated not less than one second after the warning onset.

(e) In icing conditions stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall, in power off straight and turning flight decelerations not exceeding one knot per second, when the pilot starts a recovery maneuver not less than three seconds after the onset of stall warning.

(f) An airplane is considered stalled when the behavior of the airplane gives the pilot a clear and distinctive indication of an acceptable nature that the airplane is stalled. Acceptable indications of a stall, occurring either individually or in combination are:

(1) A nose-down pitch that cannot be readily arrested

(2) Buffeting, of a magnitude and severity that is strong and effective deterrent to further speed reduction; or

(3) The pitch control reaches the aft stop and no further increase in pitch attitude occurs when the control is held full aft for a short time before recovery is initiated

(g) An aircraft exhibits unacceptable characteristics during straight or turning flight decelerations if it is not always possible to produce and to correct roll and yaw by unreversed use of aileron and rudder controls, or abnormal nose-up pitching occurs.

5. Handling Characteristics at High Incidence

In lieu of both § 25.201 and § 25.203 we propose the following requirements:

5.1High Incidence Handling Demonstrations

In lieu of § 25.201: High incidence handling demonstration in icing and non icing conditions.

(a) Maneuvers to the limit of the longitudinal control, in the nose up sense, must be demonstrated in straight flight and in 30° banked turns with:

(1) The high incidence protection system operating normally.

(2) Initial power conditions of:

I: Power off.

II: The power necessary to maintain level flight at 1.5 VSR1, where VSR1is the reference stall speed with flaps in approach position, the landing gear retracted and maximum landing weight.

(4) Flaps, landing gear and deceleration devices in any likely combination of positions.

(5) Representative weights within the range for which certification is requested; and

(6) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(b) The following procedures must be used to show compliance in non-icing and icing conditions:

(1) Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed one knot per second until the control reaches the stop;

(2) The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition and must then be recovered by normal recovery techniques;

(3) Maneuvers with increased deceleration rates;

(i) In non icing conditions, the requirements must also be met with increased rates of entry to the incidence limit, up to the maximum rate achievable.

(ii) In icing conditions, with the anti-ice system working normally, the requirements must also be met with increased rates of entry to the incidence limit, up to 3kt/s.

(4) Maneuver with ice accretion prior to operation of the normal anti-ice system

With the ice accretion prior to operation of the normal anti-ice system, the requirement must also be met in deceleration at 1kt/s up to FBS (with and without alpha floor).

5.2Characteristics in High Incidence Maneuvers

In lieu of § 25.203: Characteristics in High Incidence.

In icing and non icing conditions:

(a) Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30° banked turns, the airplane's characteristics shall be as follows:

(1) There shall not be any abnormal nose-up pitching.

(2) There shall not be any uncommanded nose-down pitching, which would be indicative of stall. However reasonable attitude changes associated with stabilizing the incidence at Alpha limit as the longitudinal control reaches the stop would be acceptable.

(3) There shall not be any uncommanded lateral or directional motion and the pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.

(4) The airplane must not exhibit buffeting of a magnitude and severity that would act as a deterrent from completing the maneuver specified in 5.1.(a).

(b) In maneuvers with increased rates of deceleration some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized Alpha-limit. However the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal control on the stop for a period of time appropriate to the maneuver.

(c) It must always be possible to reduce incidence by conventional use of the controls.

(d) The rate at which the airplane can be maneuvered from trim speeds associated with scheduled operating speeds such as V2and VREFup to Alpha-limit shall not be unduly damped or be significantly slower than can be achieved on conventionally controlled transport airplanes.

5.3Characteristics up to Maximum Lift Angle of Attack

(a) In non-icing conditions:

Maneuvers with a rate of deceleration of not more than 1 knot per second up to the angle of attack at which

EP19DE12.019was obtained as defined in paragraph 3 must be demonstrated in straight flight and in 30° banked turns with:

(1) The high incidence protection deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system.

(2) Automatic thrust increase system inhibited

(3) Engines idling

(4) Flaps and landing gear in any likely combination of positions

(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(b) In icing conditions:

Maneuvers with a rate of deceleration of not more than 1 knot per second up to the maximum angle of attack reached during maneuvers from 5.1(b)(3)(ii) must be demonstrated in straight flight with:

(1) The high incidence protection deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system.

(2) Automatic thrust increase system inhibited.

(3) Engines idling.

(4) Flaps and landing gear in any likely combination of positions.

(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(c) During the maneuvers used to show compliance with paragraphs (a) (b) above, the airplane must not exhibit dangerous characteristics and it must always be possible to reduce angle of attack by conventional use of the controls. The pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.

6. Atmospheric Disturbances

Operation of the high incidence protection system must not adversely affect aircraft control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind-shear. This shall be demonstrated in non icing and icing conditions.

7. Alpha Floor

In icing and non icing conditions, the Alpha-floor setting must be such that the airplane can be flown at the speeds and bank angles specified in § 25.143(h). It also must be shown that the alpha floor setting does not interfere with normal maneuvering of the airplane. In addition there must be no alpha-floor triggering unless appropriate when the aircraft is flown in usual operational maneuvers and in turbulence.

8. Proof of Compliance

We propose that the following requirement be made in addition to those in § 25.21(b):

(b) The flying qualities will be evaluated at the most unfavorable CG position.

1. Define the stall speed as provided in SC Part I in lieu of § 25.103.

2. We propose the following requirements in lieu of § 25.105(a)(2)(i):

In lieu of § 25.105(a)(2)(i) Take-off.

(i) The V2speed scheduled in non icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the takeoff configuration, or

3. In lieu of § 25.107(c) (g) we propose the following requirements, with additional sections (c') and (g'):

In lieu of § 25.107(c) and (g) Take-off speeds.

(c) In non icing conditions V2, in terms of calibrated airspeed, must be selected by the applicant to provide at least the gradient of climb required by § 25.121(b) but may not be less than—

(1) V2MIN;

(2) VRplus the speed increment attained (in accordance with § 25.111(c)(2)) before reaching a height of 35 feet above the takeoff surface; and

(3) A speed that provides the maneuvering capability specified in § 25.143(h).

(c) In icing conditions with the “take-off ice” accretion defined in Appendix C, V2may not be less than—

(1) The V2speed determined in non icing conditions

(2) A speed that provides the maneuvering capability specified in § 25.143(h).

(g) In non icing conditions, VFTO,in terms of calibrated airspeed, must be selected by the applicant to provide at least the gradient of climb required by § 25.121(c), but may not be less than—

(1) 1.18 VSR; and

(2) A speed that provides the maneuvering capability specified in § 25.143(h).

(g) In icing conditions with the “Final take-off ice” accretion defined in Appendix C, VFTO, may not be less than—

(1) The VFTOspeed determined in non icing conditions.

(2) A speed that provides the maneuvering capability specified in § 25.143(h).

4. In lieu of § 25.121(b)(2)(ii)(A), § 25.121(c)(2)(ii)(A), § 25.121(d)(2)(ii), we propose the following requirements:

In lieu of § 25.121(b)(2)(ii)(A) Climb: One-engine inoperative:

(A) The V2speed scheduled in non icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the take-off configuration; or

In lieu of § 25.121(c)(2)(ii)(A) Climb: One-engine inoperative:

(A) The VFTOspeed scheduled in non icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en-route configuration; or

In lieu of § 25.121(d)(2)(ii) Climb: One-engine inoperative:

(d)(2) The requirements of sub-paragraph (d)(1) of this paragraph must be met:

(ii) In icing conditions with the approach Ice accretion defined in Appendix C, in a configuration corresponding to the normal all-engines-operating procedure in which Vmin1g for this configuration does not exceed 110% of the Vmin1g for the related all-engines-operating landing configuration in icing, with a climb speed established with normal landing procedures, but not more than 1.4 VSR(VSRdetermined in non icing conditions).

5. In lieu of § 25.123(b)(2)(i) we propose the following requirements:

In lieu of § 25.123(b)(2)(i) En-route flight paths:

(i) The minimum en-route speed scheduled in non icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en-route configuration, or

6. In lieu of § 25.125(b)(2)(ii)(B), we propose paragraph § 25.125(b)(2)(ii)(C) be removed and replaced by the following requirements:

In lieu of § 25.125(b)(2)(ii)(B) and § 25.125(b)(2)(ii)(C) Landing.

(B) A speed that provides the maneuvering capability specified in § 25.143(h) with the landing ice accretion defined in appendix C.

7. In lieu of, § 25.143(j)(2)(i) we propose the following requirements for controllability and maneuverability:

In lieu of § 25.143(j)(2)(i) General.

(i) The airplane is controllable in a pull-up maneuver up to 1.5 g load factor or lower if limited by AOA protection; and

8. In lieu of § 25.207, Stall warning, to read as the requirements defined in SC Part I., Section 4.

This action proposes special conditions for the Embraer S.A. Model EMB-550 airplane. This airplane will have novel or unusual design features, specifically distributed electrical and electronic equipment bays in pressurized areas of the airplane. Older transport category airplane electrical/electronic equipment bay installations are located in the lower lobe where the flightcrew could determine the origin of smoke or fire by a straightforward airplane flight manual procedure. In distributed electrical/electronic bay installations it is not as straightforward. The FAA has no requirement for smoke and/or fire detection in the electrical/electronic equipment bays. To ensure effective mitigation of fires, the FAA proposes these special conditions. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

Send your comments on or before February 4, 2013.

ADDRESSES:

Send comments identified by docket number FAA-2012-XXXX using any of the following methods:

•Hand Delivery or Courier:Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 8 a.m. and 5 p.m., Monday through Friday, except federal holidays.

•Fax:Fax comments to Docket Operations at 202-493-2251.

Privacy:The FAA will post all comments it receives, without change, tohttp://www.regulations.gov/,including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in theFederal Registerpublished on April 11, 2000 (65 FR 19477-19478), as well as athttp://DocketsInfo.dot.gov/.

Docket:Background documents or comments received may be read athttp://www.regulations.gov/at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with a low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.

The Model EMB-550 airplane has electrical/electronic equipment bays distributed throughout the airplane; three of them are in the pressurized area. The current airworthiness requirements do not contain adequate or appropriate safety standards regarding smoke/fire detection and protection against penetration of hazardous quantities of smoke from equipment bays into occupied areas of the airplane for this type of airplane configuration.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 airplane because of a novel or unusual design feature, special conditions areprescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

Novel or Unusual Design Features

The Model EMB-550 airplane will incorporate the following novel or unusual design features: The Model EMB-550 airplane has distributed electrical and electronic equipment bays that were not envisioned at the time this rule was made.

Discussion

In general, smoke and fire detection systems are designed to:

• Automatically shut off power to the affected equipment,

• If necessary, reconfigure the environmental control systems to control any smoke resulting from a fire or overheat condition, and

• Alert the flightcrew to the existence of the fire.

Most airplanes certified under part 25 have one or two electrical equipment bays located in the lower lobe, adjacent to pressure regulator/outflow valves or vents. If a fire occurs in an electrical equipment bay, any smoke is drawn toward the outflow valves or vents and is discharged from the airplane without entering occupied areas. In the event of a smoke or fire in one of the electrical equipment bays, the procedures to isolate the bay on some airplanes requires the flightcrew to use trial and error to determine whether or not the source is in a particular electrical equipment bay. However, with this approach, the flightcrew does not know where the fire or smoke is because it is difficult to identify the source, especially during changes of phases of flight (e.g., climbing or descending) or system transients (e.g., changes in the airflow from the environmental control system).

This trial-and-error approach may be acceptable for aircraft with no more than two electrical equipment bays, both located in the lower lobe. In this case, a fire in an electrical equipment bay is in either one bay or the other. However, for an aircraft with three or more electrical equipment bays, in the time it takes to determine the source of smoke, the fire could spread, generating even more smoke and damage.

In the Model EMB-550 airplane, electrical equipment bays are distributed throughout the airplane in the pressurized compartment. Section 25.857 requires that cargo compartments have means to prevent hazardous quantities of smoke or fire extinguishing agent from penetrating into occupied areas of the airplane. However, the applicable airworthiness regulations do not address the following:

• Preventing hazardous quantities of smoke or extinguishing agent originating from the electrical equipment bays from penetrating into occupied areas of the airplane; or

• Installing smoke or fire detectors in electrical equipment bays.

The FAA determined that the Model EMB-550 needs a means to detect smoke or fire in each electrical equipment bay that is located in the pressurized cabin. This means must indicate in which bay the smoke or fire occurs, and ensure that the flightcrew can depower it. For situations in which it may be impossible for the flightcrew to shut down all the equipment in the bay due to the use of critical or essential equipment located in it, Embraer S.A. shall conduct an analysis to:

• Specify the criteria for shutting down specific electrical equipment in the electrical equipment bay that can be shut down,

• Demonstrate that remaining electrical equipment is protected against fire propagation, such as thermal protection, fire containment, and other systems as addressed in Advisory Circular 25-16,Electrical Fault and Fire Prevention and Protection,dated April 5, 1991.

The criteria developed for aircraft designs that incorporate distributed electrical/electronic equipment bays are based upon existing smoke/fire detection and smoke penetration guidance and acceptable past practices. Sections 25.831(b), 25.831(c), 25.831(d), and 25.869(a) provide the general requirements that apply to electrical/electronic equipment smoke penetration and evacuation. Flight tests are conducted to demonstrate compliance; however, the amount of smoke generated and flight test conditions have been highly variable.

The special conditions below require that there must be a means to detect smoke or fire in each electrical/electronic equipment bay located in the pressurized compartment. They also include requirements to prevent propagation of hazardous quantities of smoke or fire extinguishing agent throughout the passenger cabin.

Applicability

As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Proposed Special Conditions

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Embraer S.A. Model EMB-550 airplanes.

1. Requirements to prevent propagation of smoke that originates in electrical equipment bays from entering the passenger cabin and flight deck:

a. To prevent such propagation, means to prevent hazardous quantities of smoke originating from the electrical equipment bays from incapacitating passengers and crew must be demonstrated. The demonstrations must include flight tests, and shall be conducted for all dispatchable system configurations.

b. A small quantity of smoke may enter an occupied area only under the following conditions:

i. The smoke enters occupied areas during system transients from below the deck or main deck sources. No sustained smoke penetration beyond that from environmental control system transients is permitted,

ii. Penetration of the small quantity of smoke is a dynamic event, involving either dissipation or mobility.Dissipation is rapid dilution of the smoke by ventilation air. Mobility is rapid movement of the smoke into and out of the occupied area. In no case should a light haze indicative of stagnant airflow form, as this indicates that the ventilation system is failing to meet the requirements of 14 CFR 25.831,

iii. The smoke from a source below the main deck must not rise above armrest height on the main deck, and

iv. The smoke from a source in the main deck must dissipate rapidly via dilution with fresh air and be evacuated from the airplane. The Airplane Flight Manual (AFM) must include procedures to evacuate smoke from the occupied areas. To demonstrate that the quantity of smoke is small, a flight test must be conducted which simulates the emergency procedures used in the event of a fire during flight, including the use of VMO/MMOdescent profiles and a simulated landing, if such conditions are specified in the emergency procedure.

2. Requirement for smoke or fire detection in electrical/electronic equipment bays: A smoke or fire detection system compliant with §§ 25.855(a), (b), (c), and (d); and § 25.858 must be provided for each electrical/electronic equipment bay in the pressurized cabin. Each system must provide a visual indication to the flight deck within one minute after the start of a fire. Airplane flight tests must be conducted to show compliance with these requirements, and the performance of the detectors must be shown in accordance with Advisory Circular 25-9A,Smoke Detection, Penetration, and Evacuation Tests and Related Flight Manual Emergency Procedures,or other means acceptable to the FAA.

3. Requirement for AFM procedures safety analysis: It shall be demonstrated that the AFM procedures to shut down electrical/electronic equipment bays, or part of them, in case of smoke/fire detection, do not compromise the safe operation of the aircraft. If a procedure requests to shut down only part of the equipment, the remaining equipment shall be incorporated with safety precautions against fire propagation.

We are revising an earlier proposed airworthiness directive (AD) for Eurocopter Deutschland GmbH (Eurocopter) Model BO-105A, BO-105C, BO-105LS A-1, BO-105LS A-3, and BO-105S helicopters, which proposed inspecting for debonding of the erosion protective shell (abrasion strip) on the leading edge of each main rotor blade. This SNPRM proposes to revise those inspection requirements by identifying specific dates of replacement of the applicable parts and identifying a specific inspection method for debonding of an abrasion strip.

You may examine the AD docket on the Internet athttp://www.regulations.govor in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

Discussion

On November 29, 2011, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to Eurocopter Model BO-105A, BO-105C, BO-105LS A-1, BO-105LS A-3, and BO-105S helicopters with a main rotor blade, part number (P/N) 105-15103, 105-15141, 105-15141V001, 105-15143, 105-15150, 105-15150V001, 105-15152, 105-81013, 105-87214, 1120-15101, or 1120-15103; where the main rotor blade erosion protective shell was replaced between September 2006and March 2010. This proposal was published in theFederal Registeras a notice of proposed rulemaking (NPRM) on December 6, 2011 (76 FR 76068). The NPRM proposed to require a one-time inspection of each main rotor blade for debonding of the erosion protective shell within 50 hours time-in-service (TIS). If debonding was detected during the inspection, the NPRM proposed replacing the main rotor blade with an airworthy main rotor blade before further flight. The proposed requirements were intended to detect debonding of the main rotor blade erosion protective shell, which could lead to an unbalanced main rotor, high vibration, damage to the tail boom or tail rotor, and loss of control of the helicopter.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD No. 2010-0216-E, dated October 21, 2010 (corrected October 29, 2010), applicable to Eurocopter Model BO105 A, BO105 C, BO105 D, BO105 LS A-1, BO105 LS A-3, and BO105 S helicopters, all variants (except variants CB-5 and DBS-5). EASA advises that during an inspection on a BO105 helicopter, debonding was found on the erosion protective shell of a main rotor blade, and investigation showed the debonding was caused by incorrect installation of the erosion protective shell. In addition, EASA states that an incident occurred where a second BO105 helicopter lost its erosion protective shell during hover flight. EASA advises that this condition, if not corrected, could result in loss of the main rotor blade erosion protective shell during flight, leading to an unbalanced main rotor and high vibrations, which could damage the tail boom or tail rotor or result in loss of tail rotor control and loss of control of the helicopter.

Actions Since Previous NPRM Was Issued

Since we issued the previous NPRM (76 FR 76068, December 6, 2011), we discovered the need for identifying specific dates of replacement of the applicable parts and identifying that a tap inspection would be the required method for inspecting for debonding of an abrasion strip. The previous NPRM stated the proposed AD would apply to certain part-numbered main rotor blades with a main rotor blade abrasion strip that was replaced between September 2006 and March 2010. This supplemental NPRM proposes clarifying the date range to be inclusive of September 1, 2006 through March 31, 2010. The previous NPRM also proposed to require inspecting for debonding of the abrasion strip along the leading edge of each main rotor blade. This supplemental NPRM clarifies that the proposed inspection method is a tap inspection.

Because these proposed changes expand the applicability and may increase the economic burden on some operators, the FAA will reopen the comment period to provide additional opportunity for public comment.

FAA's Determination

We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other helicopters of these same type designs. Certain changes described above expand the scope of the original NPRM (76 FR 76068, December 6, 2011). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment.

Related Service Information

Eurocopter has issued Emergency Alert Service Bulletin (ASB) No. ASB BO105-10-124, dated July 14, 2010, for the Model BO105 helicopter, with a main rotor blade, P/N 105-15103, 105-15141, 105-15141V001, 105-15143, 105-15150, 105-15150V001, 105-15152, 105-81013, 105-87214, 1120-15101, or 1120-15103, where the main rotor blade erosion protective shell was replaced between September 2006 and March 2010. Eurocopter also issued Emergency ASB No. ASB-BO105LS-10-12, dated July 14, 2010, for the Model BO105LS A-3 helicopter, with a main rotor blade, P/N 105-15141, where the main rotor blade erosion protective shell was replaced between September 2006 and March 2010. Both Emergency ASBs exclude helicopters from this inspection if each main rotor blade was inspected at the last 600 flight hour inspection and no debonding was detected during the inspection. Both Emergency ASBs specified a one-time inspection of the main rotor blades within the next 50 flight hours to determine if debonding of the main rotor blade erosion protective shell has occurred.

Eurocopter subsequently issued Emergency ASB No. ASB BO105-10-124, Revision 1, dated October 18, 2010, and Emergency ASB No. ASB-BO105LS-10-12, Revision 1, dated October 20, 2010. These service bulletins specify the same inspection requirements as the original service bulletins, but revise the inspection compliance time from 50 flight hours to 10 flight hours. EASA classified these service bulletins as mandatory and issued EASA Emergency AD No. 2010-0216-E, dated October 21, 2010 (corrected October 29, 2010) to ensure the continued airworthiness of these helicopters.

Proposed Requirements of the Supplemental NPRM

This proposed AD would require, within 50 hours TIS, inspecting for debonding by tap testing the abrasion strip of the leading edge of each main rotor blade. If there is debonding in any area of the abrasion strip, this proposed AD would require, before further flight, replacing the main rotor blade.

• The EASA AD allows you to replace the main rotor blade erosion protective shell if debonding is detected, and this proposed AD would require you to replace the main rotor blade with an airworthy main rotor blade if debonding is detected.

• The EASA AD is applicable to the Model BO105 D helicopter; however, this proposed AD would not include this model because it does not have a type certificate in the U.S.

Costs of Compliance

We estimate that this AD would affect 97 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this proposed AD. It would take about 1.0 work-hour per helicopter to perform the inspection at an average labor rate of $85 per work-hour. Based on these figures, we estimate the cost of the inspection on U.S. operators would be $8,245 or $85 per helicopter. If there is debonding, we estimate that it would take about 2 work-hours to replace a main rotor blade and required parts would cost $114,182, for a total cost of $114,352 per blade. We have no way of determining how many operators will incur replacement costs.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in moredetail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

This AD applies to Model BO-105A, BO-105C, BO-105LS A-1, BO-105LS A-3, and BO-105S helicopters, with a main rotor blade, part number 105-15103, 105-15141, 105-15141V001, 105-15143, 105-15150, 105-15150V001, 105-15152, 105-81013, 105-87214, 1120-15101, or 1120-15103; where the main rotor blade erosion protective shell (abrasion strip) was replaced between September 1, 2006 and March 31, 2010, inclusive; certificated in any category.

(b) Unsafe Condition

This AD defines the unsafe condition as debonding of a main rotor blade erosion protective shell (abrasion strip). This condition could result in loss of the abrasion strip and an unbalanced main rotor, high vibration, damage to the tail boom or tail rotor, and loss of control of the helicopter.

(c) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(d) Required Actions

(1) Within 50 hours time-in-service, inspect the main rotor blade for debonding of the erosion protective shell by tap testing the abrasion strip of the leading edge of each main rotor blade.

(2) If the abrasion strip is debonding in any area, before further flight, replace the main rotor blade.

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

The Drug Enforcement Administration (DEA) proposes placing the substance lorcaserin, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible, into Schedule IV of the Controlled Substances Act (CSA). This proposed action is based on a recommendation from the Assistant Secretary for Health of the Department of Health and Human Services (HHS) and on an evaluation of all other relevant data by DEA. If finalized, this action would impose the regulatory controls and criminal sanctions of Schedule IV on the manufacture, distribution, dispensing, importation, exportation, and possession of lorcaserin and products containing lorcaserin.

DATES:

DEA will permit interested persons to file written comments on this proposal pursuant to 21 CFR 1308.43(g). Electronic comments must be submitted and written comments must be postmarked on or before January 18, 2013. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight Eastern Time on the last day of the comment period.

Interested persons, defined as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811),”1may file a request for hearing or waiver of participation pursuant to 21 CFR 1308.44 and in accordance with 21 CFR 1316.45. Requests for hearing and waivers of participation must be received on or before January 18, 2013.

121 CFR 1300.01.

ADDRESSES:

To ensure proper handling of comments, please reference “Docket No. DEA-369” on all electronic and written correspondence. DEA encourages all comments be submitted electronically throughhttp://www.regulations.govusing the electronic comment form provided on that site. An electronic copy of this document and supplemental information to this proposed rule are also available at thehttp://www.regulations.govWeb site for easy reference. Paper comments that duplicate the electronic submission are not necessary as all comments submitted towww.regulations.govwill be posted for public review and are part of the official docket record. Should you, however, wish to submit written comments via regular or express mail, they should be sent to the Drug Enforcement Administration, Attention: DEA Federal Register Representative/OD, 8701 Morrissette Drive, Springfield, VA 22152. All requests for hearing and waivers of participation must be sent to Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, VA 22152.

Please note that all comments received are considered part of the public record and made available for public inspection online athttp://www.regulations.govand in the DEA's public docket. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.

Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the DEA's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information Contact” paragraph, above.

Requests for Hearing or Waiver of Participation in Hearing

In accordance with the provisions of the CSA (21 U.S.C. 811(a)), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act (5 U.S.C. 556 and 557) and 21 CFR 1308.41. Pursuant to 21 CFR 1308.44(a) and (c), requests for a hearing and waivers of participation may be submitted only by interested persons, defined as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811).”2Requests for a hearing must conform to the requirements of 21 CFR 1308.44(a) and 1316.47. A request should state, with particularity, the interest of the person in the proceeding and the objections or issues, if any, concerning which the person desires to be heard. Any waiver must conform to the requirements of 21 CFR 1308.44(c), including a written statement regarding the interested person's position on the matters of fact and law involved in any hearing.

221 CFR 1300.01.

Please note that pursuant to 21 U.S.C. 811(a), the purpose and subject matter of the hearing is restricted to “(A) find[ing] that such drug or other substance has a potential for abuse, and (B) mak[ing] with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed * * *” Requests for hearing and waivers of participation in the hearing should be submitted to DEA using the address information provided above. DEA may grant a hearing only “for the purpose of receiving factual evidence and expert opinion regarding the issues involved in the issuance, amendment or repeal of a rule issuable” pursuant to 21 U.S.C. 811(a).

Legal Authority

DEA implements and enforces Titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act (CSA) and the Controlled Substances Import Export Act (CSIEA) (21 U.S.C. 801-971), as amended (hereinafter, “CSA”).

Under the CSA, controlled substances are classified in one of five schedules based upon their potential for abuse, their currently accepted medical use, safety and the degree of dependence the substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances are found at 21 U.S.C. 812(c). Pursuant to 21 U.S.C. 811(a)(1), the Attorney General may, by rule, “add to such a schedule or transfer between such schedules any drug or other substance if he (A) finds that such drug or other substance has a potential for abuse, and (B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed* * *” Pursuant to 28 CFR 0.100(b), the Attorney General has delegated this scheduling authority to the Administrator of DEA.

Background

Lorcaserin ((R)-8-chloro-1-methyl-2,3,4,5-tetrahydro-1H-3-benzepine hydrochloride hemihydrate) is a new chemical entity which has central nervous system hallucinogenic properties. Lorcaserin is a serotonin receptor agonist, at the 5HT2Cand 5HT2Areceptor subtypes. Lorcaserin was approved by the Food and Drug Administration (FDA) on June 27, 2012, as an addition to a reduced-calorie diet and exercise, for chronic weightmanagement and it will be marketed under the trade name BELVIQ®.

Proposed Determination To Schedule Lorcaserin

Pursuant to the CSA, 21 U.S.C. 811(a), proceedings to add a drug or substance to those controlled under the CSA may be initiated by request of the Secretary of HHS. On June 25, 2012, HHS provided DEA with a scientific and medical evaluation document prepared by FDA entitled “Basis for the Recommendation for Control of Lorcaserin in Schedule IV of the Controlled Substances Act.” Pursuant to 21 U.S.C. 811(b), (c), and (f), this document contained an eight-factor analysis of the abuse potential of lorcaserin as a new drug, along with HHS' recommendation to control lorcaserin under Schedule IV of the CSA.

In response, DEA conducted an eight-factor analysis of abuse potential of lorcaserin pursuant to 21 U.S.C. 811(c). Included below is a brief summary of each factor as considered by HHS and DEA. Please note that both the DEA and HHS analyses are available in whole in the “Supporting and Related Material” of the public docket for this rule atwww.regulations.govunder docket number DEA-369. Full analysis of and citations to the information referenced in the summary may be found in the supporting material.

1.The Drug's Actual or Relative Potential for Abuse:Lorcaserin is a newchemical substance that has not been marketed in the U.S. or in any other country. As such, there is no information available which details actual abuse of lorcaserin. However, the legislative history of the CSA offers another methodology for assessing a drug or substance's potential for abuse:

The drug or drugs containing such a substance are new drugs so related in their action to a drug or drugs already listed as having a potential for abuse to make it likely that the drug will have the same potentiality for abuse as such drugs, thus making it reasonable to assume that there may be significant diversions from legitimate channels, significant use contrary to or without medical advice, or that it has a substantial capability of creating hazards to the health of the user or to the safety of the community.3

According to HHS, lorcaserin is an agonist at the serotonin receptor subtypes 5-HT2Cand 5-HT2A. Lorcaserin is indicated as an addition to a reduced-calorie diet and exercise, for chronic weight management. There is evidence, described below, that lorcaserin produces subjective effects in humans and in animals that are similar to those produced by zolpidem (Schedule IV) and ketamine (Schedule III)

HHS described a human abuse potential study in recreational drug abusers of psychedelic drugs and CNS depressants, in which lorcaserin and the comparator drugs zolpidem (Schedule IV) and ketamine (Schedule III) produced significant increases on positive subjective measures (visual analog scales (VAS)) for “high” and “good drug effects as well as an increase on the VAS for “hallucinations.” Lorcaserin, as well as zolpidem and ketamine, significantly increased reports of “sedation” on the subjective scale of the Addiction Research Center Inventory (ARCI), compared to placebo. HHS summarized that these subjective response data suggest that lorcaserin produces subjective effects similar to those produced by zolpidem and ketamine. According to HHS, 20-60 mg of lorcaserin produced a high rate of euphoria in 6-19% of the subjects in a human abuse potential study. The incidence of euphoria following lorcaserin administration in the human abuse potential study is similar to that reported following zolpidem (Schedule IV) administration (13-16%) and lower than that following ketamine (Schedule III) administration (50%).

According to HHS, lorcaserin is not available or marketed in any country. Thus there is no evidence of lorcaserin diversion, illicit manufacturing, or deliberate ingestion. Because lorcaserin has been shown to produce euphoria in humans, it is anticipated that there will be significant use contrary to or without medical advice. Lorcaserin is not readily synthesized from available substances, and thus its diversion will be likely from the legitimate channels.

2.Scientific Evidence of the Drug's Pharmacological Effects, If Known:HHS stated that lorcaserin is a 5-HT2Cand 5-HT2Aserotonin receptor agonist. DEA further notes that it has been shown that lorcaserin through activation of 5-HT2Creceptors causes inositol phosphate accumulation with an EC50of 9 nM. Lorcaserin also activated the 5-HT2Aand 5-HT2Breceptors, with EC50s of 168 nM and 943 nM, respectively.

HHS stated that acutely, lorcaserin decreases locomotor activity in rats. Tolerance does develop to this effect, because after 21 days, lorcaserin does not affect the locomotor activity of the rats. DEA further notes that a study showed that food intake in rats was reduced after a single administration of lorcaserin. The doses administered were 3, 6, 12, and 24 mg/kg. Lorcaserin decreased the cumulative food intake at 2, 4, 6, and 22 hours. The ED50for food intake inhibition was 18 mg/kg.

According to HHS' review, a drug discrimination study conducted in 2,5-dimethoxy-4-methylamphetamine (DOM)-trained rats showed that lorcaserin (0.1-10 mg/kg) produced full generalization (≥80%) to the DOM cue in 7 of 9 rats. DOM is a Schedule I hallucinogen and a 5-HT2Aand 5-HT2Creceptor agonist. These data suggest that lorcaserin in doses 0.1 to 10 mg/kg produces discriminative stimulus responses similar to DOM, a hallucinogen.

As described by HHS in a human abuse potential study with individuals with a history of abusing drugs, lorcaserin was evaluated for its abuse potential; it was compared to ketamine (Schedule III NMDA antagonist), zolpidem (Schedule IV GABA agonist), and a placebo. In clinical trials, lorcaserin, similar to ketamine and zolpidem, produced euphoric and hallucinogenic adverse events (AEs).

3.The State of the Current Scientific Knowledge Regarding the Drug or Other Substance:HHS states that lorcaserin ((R)-8-chloro-1-methyl-2,3,4,5-tetrahydro-1H-3-benzepine hydrochloride hemihydrate) is water-soluble. The molecular formula is C11H14ClN and its molecular weight is 241.6 g/mol, the CAS number is 616202-92-7.

According to HHS, in humans, lorcaserin is rapidly absorbed from the gastrointestinal tract after oral administration, the tmax(time to reach maximum plasma concentration) is ≤ 2 hours and its half-life in plasma is about 11 hours. DEA further notes that after a single oral administration of 10 mg/kg lorcaserin to rats, the absorption from the gastrointestinal tract was rapid, resulting in a mean maximum plasma concentration (Cmax) of 0.76 µg/ml at 0.25 hour. The time from oral administration to brain maximal exposure was 1 hour.

According to HHS, the major circulating metabolite of lorcaserin is lorcaserin sulfamate (M1). Lorcaserin is metabolized by the liver and excreted by the kidney. M1 is considered inactive and it does not bind significantly to monoamine transporters. DEA further notes that the major metabolite in the urine is N-carbamoyl glucuronide (M5).

4.Its History and Current Pattern of Abuse:History and current pattern of abuse of lorcaserin is not available since it has not been marketed in any country. As stated in HHS' review, lorcaserin produced positive subjective effects in a human abuse potential study that aresimilar to those produced by zolpidem (Schedule IV) and ketamine (Schedule III). HHS states that the positive subjective effects reported from supratherapeutic doses of lorcaserin administration, are predictive of its potential for abuse.

5.The Scope, Duration, and Significance of Abuse:According to the HHS review, the information on lorcaserin's scope, duration and significance of abuse is not available since it has not been marketed in any country. Thus, the evaluation of the significance of abuse of lorcaserin derives from positive indicators in pre-market clinical trials which are believed to be predictive of drug abuse. Based on the AEs reported in the clinical efficacy studies and the data from a human abuse potential lorcaserin study, HHS concluded that the scope and significance of the abuse potential of lorcaserin is similar to Schedule IV substances. HHS states that marketing lorcaserin as a Schedule IV substance will decrease its abuse, as opposed to marketing it as an uncontrolled or Schedule V substance.

6.What, if any, Risk There is to the Public Health:According to HHS, the abuse potential of lorcaserin presents a risk to the public health. HHS states that lorcaserin produces a number of AEs that are commonly seen with other Schedule IV substances that are abused. Some of these AEs include feeling jittery, psychomotor hyperactivity, paresthesia, abnormal dreams, and state of confusion. Headache, nausea, and dizziness were the most commonly reported AEs in lorcaserin clinical studies. In a human abuse potential study, 20-60 mg lorcaserin produced a high incidence of the AE euphoria in 6-19% of the subjects. According to HHS, because lorcaserin binds to 5-HT2receptors and generalizes to 5-HT2agonists in drug discrimination studies in rats, it is expected to have a hallucinogenic profile. DEA further notes that in the human abuse potential study conducted by Shram and colleagues (2011), supratherapeutic doses of lorcaserin were associated with significantly higher peak scores on the “Detached” (40 and 60 mg), “Hallucinations” (40 mg), and “Spaced Out” (40 and 60 mg) visual analog scales.

7.Its Psychic or Physiological Dependence Liability:According to HHS' review, there were two clinical studies conducted to determine the ability of lorcaserin to induce physical dependence. The patients in these studies were obese and lorcaserin was administered for 4 and 12 weeks prior to drug discontinuation. Upon lorcaserin discontinuation, there were no signs of changes in mood, food interest, or body weight. Discontinuation of lorcaserin administration to animals also did not produce typical withdrawal symptoms. However, according to HHS, the ability of lorcaserin to produce hallucinations, euphoria, and positive subjective responses at supratherapeutic doses is suggestive of its potential to produce psychic dependence.

8.Whether the Substance is an Immediate Precursor of a Substance Already Controlled Under the CSA:Lorcaserin is not an immediate precursor of a substance already controlled under the CSA.

Conclusion:Based on consideration of the scientific and medical evaluation conducted by HHS and its recommendation, and after considering its own eight-factor analysis, DEA has determined that these facts and all relevant data constitute substantial evidence of potential for abuse of lorcaserin. As such, DEA hereby proposes to schedule lorcaserin as a controlled substance under the CSA.

Proposed Determination of Appropriate Schedule

The CSA establishes five schedules of controlled substances known as Schedules I, II, III, IV, and V. The statute outlines the findings required in placing a drug or other substance in any schedule. 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the Assistant Secretary for Health of HHS and review of all available data, the Administrator of DEA, pursuant to 21 U.S.C. 812(b), finds that:

(1) Lorcaserin has a low potential for abuse relative to the drugs or other substances in Schedule III. The overall abuse potential of lorcaserin is comparable to the Schedule IV substances;

(2) Lorcaserin has a currently accepted medical use in treatment in the United States. Lorcaserin was approved for marketing by FDA as an addition to a reduced-calorie diet and exercise, for chronic weight management; and

(3) Abuse of lorcaserin may lead to limited psychological dependence relative to the drugs or other substances in Schedule III. This finding is based on the ability of lorcaserin to produce positive subjective effects at supratherapeutic doses.

Based on these findings, the Administrator of DEA concludes that lorcaserin, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible, warrants control in Schedule IV of the CSA (21 U.S.C. 812(b)(4)).

Requirements for Handling Lorcaserin

If this rule is finalized as proposed, lorcaserin would be subject to CSA regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, dispensing, importing and exporting of a Schedule IV controlled substance, including the following:

Registration.Any person who manufactures, distributes, dispenses, imports, exports, engages in research or conducts instructional activities with lorcaserin, or who desires to manufacture, distribute, dispense, import, export, engage in instructional activities or conduct research with lorcaserin, would need to be registered to conduct such activities pursuant to 21 U.S.C. 822 and in accordance with 21 CFR Part 1301.

Security.Lorcaserin would be subject to Schedules III-V security requirements and would need to be manufactured, distributed, and stored pursuant to 21 U.S.C. 823 and in accordance with 21 CFR 1301.71, 1301.72(b), (c), and (d), 1301.73, 1301.74, 1301.75(b) and (c), 1301.76, and 1301.77.

Labeling and Packaging.All labels and labeling for commercial containers of lorcaserin which are distributed on or after finalization of this rule would need to be in accordance with 21 CFR 1302.03-1302.07, pursuant to 21 U.S.C. 825.

Inventory.Every registrant required to keep records and who possesses any quantity of lorcaserin would be required to keep an inventory of all stocks of lorcaserin on hand pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Every registrant who desires registration in Schedule IV for lorcaserin would be required to conduct an inventory of all stocks of the substance on hand at the time of registration.

Records.All registrants would be required to keep records pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, 1304.21, 1304.22, and 1304.23.

Prescriptions.All prescriptions for lorcaserin or prescriptions for products containing lorcaserin would be required to be issued as a controlled substance pursuant to 21 U.S.C. 829 and in accordance with 21 CFR 1306, including but not limited to 21 CFR 1306.03-1306.06, 1306.08, 1306.09, and 1306.21-1306.27.

Importation and Exportation.All importation and exportation of lorcaserin would need to be done inaccordance with 21 CFR Part 1312, pursuant to 21 U.S.C. 952, 953, 957, and 958.

Criminal Liability.Any activity with lorcaserin not authorized by, or in violation of, Subchapter I Part D and Subchapter II of the CSA occurring on or after finalization of this proposed rule would be unlawful.

Regulatory AnalysesExecutive Orders 12866 and 13563

In accordance with 21 U.S.C. 811(a), this proposed scheduling action is subject to formal rulemaking procedures done “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. Such actions are exempt from review by the Office of Management and Budget pursuant to Section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.

This proposed rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

Executive Order 13175

This proposed rule will not have tribal implications and will not impose substantial direct compliance costs on Indian tribal governments.

Regulatory Flexibility Act

The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), has reviewed this proposed rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. Lorcaserin products, as recently approved by the FDA, will be used as an adjunct treatment of partial onset seizure. Handlers of lorcaserin will also handle other controlled substances used as anti-seizure agents, which are already subject to the regulatory requirements of the CSA.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $136,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act of 1995

This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

For the reasons set out above, 21 CFR part 1308 is proposed to be amended as follows:

PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES

1. The authority citation for part 1308 continues to read as follows:

Authority:

21 U.S.C. 811, 812, 871(b), unless otherwise noted.

2. Section 1308.14 is amended by redesignating paragraphs (e) and (f) as paragraphs (f) and (g) and adding a new paragraph (e) to read as follows:

§ 1308.14Schedule IV.

(e)Lorcaserin.Any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of such isomers, whenever the existence of such salts, isomers, and salts of isomers is possible:

The Captain of the Port New Orleans, under the authority of the Ports and Waterways Safety Act, intends to establish a temporary safety zone on the Mississippi River in the vicinity of Woldenburg Park, mile marker 94 to mile marker 96, extending out 300 feet from the East Bank of the Mississippi River during Super Bowl 2013 celebratory events. The Super Bowl is a large scale event that poses many public safety concerns due to the number of people that will attend. This safety zone would be established to protect the public from the hazards created by congested river traffic. This rule would be effective from 6:00 a.m. on January 29, 2013 through 6:00 a.m. on February 4, 2013. The zone will be enforced between the hours of 8:00 a.m. and 10:00 p.m. on each day of the effective period described above.

DATES:

Comments and related material must be received by the Coast Guard on or before December 30, 2012.

ADDRESSES:

You may submit comments identified by docket number using any one of the following methods:

See the “Public Participation and Request for Comments” portion of theSUPPLEMENTARY INFORMATIONsection below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email LCDR Kenneth Blair, Sector New Orleans, U.S. Coast Guard; telephone (504) 365-2392, emailKenneth.E.Blair@uscg.mil.If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of AcronymsDHSDepartment of Homeland SecurityFRFederal RegisterNPRMNotice of Proposed RulemakingA. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

1. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online athttp://www.regulations.gov,or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,type the docket number (USCG-2012-1013) in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

The comment period for this NPRM expires on December 30, 2012. The Super Bowl events for which this safety zone is intended to be effective begin the last week of January 2013, therefore a comment period extending beyond December 2012 could delay publication of the final rule. While the Coast Guard does not expect significant public comment for this rule as the safety zone will not significantly impact navigation, we will consider requests to extend the comment period.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,type the docket number (USCG-2012-1013) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

4. Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one on or before December 3, 2012, using one of the methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

B. Basis and Purpose

The 2013 National Football League Super Bowl in New Orleans, Louisiana will occur on February 3, 2013. This is a very high profile event, with tens of thousands of people expected to attend events at Woldenburg Park and other Mississippi River riverfront locations before, during, and after the football game. Due to the unusually large crowds expected along the riverfront, the consequences to the public of an incident involving a vessel in the immediate area will greatly increase. To address this concern, the Captain of the Port New Orleans intends to establish a temporary safety zone on the Mississippi River in the vicinity of Woldenburg Park, mile marker 94 to mile marker 96, extending out 300 feet from the East Bank of the Mississippi River. This safety zone would be established to protect the public from the potential hazards created by congested river traffic. All vessels would be prohibited from entering into or transiting through the safety zone without prior approval of the Captain of the Port New Orleans.

The Captain of the Port New Orleans intends to establish a temporary safety zone on the Mississippi River in the vicinity of Woldenburg Park, New Orleans, Louisiana, mile marker 94 to mile marker 96, extending out 300 feet from the East Bank of the Mississippi River. This zone will be in effect from 6:00 a.m. on January 29, 2013 through 6:00 a.m. on February 4, 2013. The zone will be enforced between the hours of 8:00 a.m. and 10:00 p.m. on each day of the effective period described above. All vessels would be prohibited from entering into, remaining within, or transiting through the safety zone without prior approval of the Captain of the Port New Orleans.

D. Regulatory Analyses

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The impacts on navigation willbe minimal due to the duration and location of the safety zone, and the fact that vessels will be able to safely navigate around this area on the Mississippi River. Additionally, vessels may request permission from the Captain of the Port to enter into or transit though the safety zone.

2. Impact on Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit on the Mississippi River in the Vicinity of Woldenburg Park, New Orleans, Louisiana, mile marker 94 to mile marker 96, between 6:00 a.m. on January 29, 2013 through 6:00 a.m. on February 4, 2013.

This safety zone would not have a significant economic impact on a substantial number of small entities because most vessel traffic could pass safely around the safety zone. Vessel traffic that cannot pass safely around the safety zone would be allowed to pass through the zone with the permission of the Captain of the Port New Orleans. Before the activation of the safety zone, the Captain of the Port New Orleans would issue maritime advisories widely available to users of the river.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

4. Collection of Information

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFor Further Information Contactsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

13. Technical Standards

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary “Environmental Analysis Checklist” supporting this determination will be available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

(a)Location.The following area is a safety zone: The waters on the Mississippi River in the vicinity of Woldenburg Park, New Orleans, Louisiana, mile marker 94 to mile marker 96, extending out approximately 300 feet from the East Bank of the Mississippi River.

(b)Effective Dates:This rule is effective from 6:00 a.m. on January 29, 2013 through 6:00 a.m. on February 4, 2013.

(c)Enforcement Periods:This safety zone will be enforced from 8:00 a.m. until 10:00 p.m. on each day of the effective dates described in paragraph (b).

(c)Regulations.(1) In accordance with the general regulation in 165.23 of this part, vessels must not enter into, remain within, or transit through this safety zone, unless authorized by the Captain of the Port New Orleans.

(2) Vessels requiring entry into or passage through the Safety Zone must request permission from the Captain of the Port New Orleans, or a designated representative. The Captain of the Port New Orleans, or a designated representative, may be contacted on VHF-16, or by telephone at (504) 365-2543.

(3) All persons and vessels shall comply with the instructions of the Captain of the Port New Orleans and designated personnel. Designated personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.

Dated: December 5, 2012.P.W. Gautier,Captain, U.S. Coast Guard, Captain of the Port New Orleans.FR Doc. 2012-30626 Filed 12-18-12; 8:45 am]BILLING CODE 9110-04-PENVIRONMENTAL PROTECTION AGENCY40 CFR Part 180[EPA-HQ-OPP-2012-0001; FRL-9372-6]Notice of Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesAGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of filing of petitions and request for comment.

SUMMARY:

This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

DATES:

Comments must be received on or before January 18, 2013.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:

•Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

•Hand Delivery:To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions athttp://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available athttp://www.epa.gov/dockets.FOR FURTHER INFORMATION CONTACT:

A contact person, with telephone number and email address, is listed at the end of each pesticide petition summary. You may also reach each contact person by mail at Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

SUPPLEMENTARY INFORMATION:

I. General InformationA. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.

B. What should I consider as I prepare my comments for EPA?

1.Submitting CBI.Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

3.Environmental justice.EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

II. What action is the agency taking?

EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), (21 U.S.C. 346a), requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available online athttp://www.regulations.gov.

As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

2.PP 2E8011.(EPA-HQ-OPP-2012-0858). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC, 27419, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide thiamethoxam (3-[(2-chloro-5-thiazolyl)methyl] tetrahydro-5-methyl-N-nitro-4H-1,3,5-oxadiazin-4-imine) (CAS Reg. No. 153719-23-4) and its metabolite [N-(2-chloro-thiazol-5-yl)methyl]-N′-methyl-N′-nitro-guanidine, in or on tea at 20 ppm. Syngenta Crop Protection, LLC, has submitted practical analytical methodology for detecting and measuring levels of thiamethoxam in or on raw agricultural commodities. This method is based on crop specific cleanup procedures and determination by LC with either ultraviolet (UV) or mass spectrometry (MS) detections. Contact: Jennifer Urbanski, (703) 347-0156, email address:urbanski.jennifer@epa.gov.

3.PP 1F7826.(EPA-HQ-OPP-2012-0815). State of Florida, Department of Citrus, 605 East Main Street, P.O. Box 9010, Bartow, FL 33831-9010, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide 5-chloro-3-methyl-4-nitro-1H-pyrazole (CMNP) and its metabolite (5-chloro-4-nitro-1H-pyrazol-3-yl)-methanol (CHNP), in or on oranges at 0.80 ppm and its processed commodities: Orange, juice at 0.025 ppm; orange, oil at 0.070 ppm; and orange, dried pulp (also referred to as dried pomace) at 1.80 ppm. In all plant matrices, the residue of concern, parent CMNP and CHNP/CHNP glucoside, can be determined using high performance liquid chromatography/tandem mass spectrometry (HPLC/MS-MS) following sample extraction, hydrolysis (to convert CHNP-glucoside to its aglycone, CHNP) and solid-phase clean up. Contact: Tony Kish, (703) 308-9443, email address:kish.tony@epa.gov.

4.PP 2F8044.(EPA-HQ-OPP-2012-0876). Bayer CropScience, 2 T.W. Alexander Drive, P.O. Box 12014, Research Triangle Park, NC 27709, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide prothioconazole, 2-[2-(1-chlorocyclopropyl)-3-(2-chlorophenyl-2-hydroxypropyl]-1,2-dihydro-3H-1,2,4-triazole-3-thione and its desthio metabolite, in or on bushberry crop subgroup 13-07B at 2.0 ppm; low growing berry crop subgroup 13-07H (except strawberry) at 0.15 ppm; and cucurbit vegetables crop group 9 at 0.3 ppm. The analytical method for determining residues of concern in plants extracts residues of prothioconazole and JAU6476-desthio and converts the prothioconazole to JAU6476-desthio and JAU6476-sulfonic acid. Following the addition of internal standards, the sample extracts are analyzed by LC/MS/MS. The analytical method for analysis of large animal tissues includes extraction of the residues of concern, followed by addition of an internal standard to the extract. The extract is then hydrolyzed to release conjugates, partitioned and analyzed by LC/MS/MS as prothioconazole, JAU6476-desthio and JAU6476-4-hydroxy. The method for analysis of milk eliminated the initial extraction step in the tissue method. Contact: Rosemary Kearns, (703) 305-5611, email address:kearns.rosemary@epa.gov.

6.PP 2F8067.(EPA-HQ-OPP-2012-0841). Monsanto Company, 1300 I St., NW., Suite 450 East, Washington, DC 20052, requests to establish tolerances in 40 CFR part 180 for residues of the herbicide dicamba, (3,6-dichloro-o-anisic and its metabolites 3,6-dichloro-5-hydroxy-o-anisic acid (5-OH dicamba) and 3,6-dichloro-2-hydroxybenzoic acid (DCSA), in or on cotton, undelinted seed at 3 ppm and cotton, gin byproducts at 70 ppm. Adequate enforcement methods are available for the analysis of residues of dicamba and its relevant metabolites in or on plant and livestock commodities. Pesticide Analytical Manual (PAM) Vol. II, lists appropriate analytical methods, based on GC with electron capture detection (GC/ECD), that are sufficient to provide for the enforcement of proposed dicamba tolerances in cottonseed and cotton gin by-products. Contact: Michael Walsh, (703) 308-2972, email address:walsh.michael@epa.gov.

7.PP 2F8076.(EPA-HQ-OPP-2012-0796). Chemtura Corporation, 199 Benson Rd, Middlebury, CT 06749, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide ipconazole (2-[(4-chlorophenyl)methyl]-5-(1-methylethyl)-1-(1H-1,2,4-triazole-1-ylmethyl)cyclopentanol) from the treatment of seed prior to planting in or on legume vegetables, succulent or dried, crop group 6 at 0.01 ppm. Analytical methods have been developed, validated (including radiovalidation), and independently validated for the determination of ipconazole, triazolylalanine, triazolylacetic acid and triazolylpyruvate in wheat forage, hay, straw, and grain and in corn forage, cobs and straw using LC-MS/MS. Contact: Dominic Schuler, (703) 347-0260, email address:schuler.dominic@epa.gov.

8.PP 2F8113.(EPA-HQ-OPP-2012-0885). Syngenta Crop Protection, LLC, 410 Swing Road, P.O. Box 18300, Greensboro, NC 27419-8300, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide sedaxane,N-[2-[1,1′-bicyclopropyl]-2-ylphenyl]-3-(difluoromethyl)-1-methyl-1H-pyrazole-4-carboxamide, as the sum of itscis- andtrans- isomers, as a seed treatment in or on potato at 0.02 ppm and potato, wet peel at 0.06 ppm. Various crops were analyzed for sedaxane (parent only) using a procedure for analysis of sedaxane (SYN524464) that can distinguish between itstrans- andcis-isomers (SYN508210 and SYN508211). Plant matrices using method GRM023.01A, or modified method GRM023.01B are taken through an extraction procedure with final determination by high performance liquid chromatography (HPLC) with triple quadrupole MS detection (LC-MS/MS). Contact: Heather Garvie, (703) 308-0034, email address:garvie.heather@epa.gov.

Amended Tolerances

1.PP 2F7992.(EPA-HQ-OPP-2012-0575). Syngenta Crop Protection, LLC, Regulatory Affairs, P.O. Box 18300, Greensboro, NC 27419-8300, requests to amend the tolerances in § 180.475 for residues of the fungicide difenoconazole, 1 [2-[2-chloro-4-(4-chlorophenoxy)]phenyl-4-methyl-1,3-dioxolan-2-ylmethyl]-1H-1,2,4,-triazole), in or on vegetables, tuberous and corm, subgroup 1C from 0.01 ppm to 4.0 ppm; and by removing the established tolerance in or on the raw agricultural commodity potatoes, processed waste at 0.04 ppm. Syngenta Crop Protection, Inc., has submitted a practical analytical method (AG-575B) for detecting and measuring levels of difenoconazole in or on food with a limit of quantitation (LOQ) that allows monitoring of food with residues at or above the levels set in the proposed tolerances. Residues are qualified by LC/MS/MS; and has submitted a practical analytical method (AG-544A) for detecting and measuring levels of difenoconazole in or on cattle tissues and milk and poultry tissues and eggs, with a LOQ that allows monitoring of food with residues at or above the levels set in the proposed tolerances. Contact: Rosemary Kearns, (703) 305-5611, email address:kearns.rosemary@epa.gov.

3.PP 2F8085.(EPA-HQ-OPP-2012-0843). Dow AgroSciences, LLC, 9330 Zionsville Road, Indianapolis, IN 46268, requests to amend the tolerances in § 180.560 for the combined residues of cloquintocet-mexyl (acetic acid, [(5-chloro-8-quniolinyl)oxy]-, 1-methylhexyl ester) (CAS No. 99607-70-2) and its acid metabolite (5-chloro-8-quinlinoxyacetic acid), when used as an inert ingredient (safener) in pesticide formulations containing the new active ingredient halauxifen-methyl (XDE-729 methyl), in or on barley, grain at 0.1 ppm; barley, hay at 0.1 ppm; barley, straw at 0.1 ppm; wheat, forage at 0.2 ppm; wheat, grain at 0.1ppm; wheat, hay at 0.5 ppm; and wheat, straw at 0.1 ppm. Specifically, this pesticide petition proposes to amend the tolerance expression by adding a reference to the new herbicide active ingredient halauxifen-methyl (XDE-729 methyl). Tolerances are already established for use of cloquintocet-mexyl in conjunction with other herbicides. This petition will not change the established tolerance levels. Adequate enforcement methodology is available to enforce the tolerance expression in theFederal Registerof June 29, 2011 (76 FR 38035) (FRL-8877-2). There are two enforcement methods available. The HPLC with Ultraviolet Detection (HPLC/UV) method REM 138.01 is for the determination of cloquintocet-mexyl (parent) and the HPLC/UV Method REM 138.10 allows determination of its acid metabolite (also known as CGA-153433). Contact: Mindy Ondish, (703) 605-0723, email address:ondish.mindy@epa.gov.

New Tolerance Exemptions

1.PP 2E8027.(EPA-HQ-OPP-2012-0777). Honeywell International, Inc., 101 Columbia Road, Morristown, NJ 07962-1053, requests to establish anexemption from the requirement of a tolerance for residues of trans-1-chloro-3,3,3-trifluoropropene (CAS No. 102687-65-0) under §§ 180.910, 180.930, and 180.940 when used as a pesticide inert ingredient (propellant) in pesticide formulations. No analytical method is included as this is a petition for exemption from the requirements of a tolerance. Contact: Lisa Austin, (703) 305-7894, email address:austin.lisa@epa.gov.

2.PP 2E8082.(EPA-HQ-OPP-2012-0789). Sekisui Specialty Chemicals, 1501 West, LBJ Freeway, Dallas, TX 75234, requests to establish an exemption from the requirement of a tolerance for residues of 2-pyrrolidone, 1-ethenyl-, polymer with ethenol (CAS No. 26008-54-8) under § 180.960 when used as a pesticide inert ingredient in pesticide formulations for a packaging film for unit dose packaging of pesticides and pool sanitizers. The petitioner believes no analytical method is needed because it is not required for the establishment of a tolerance exemption for inert ingredients. Contact: David Lieu, (703) 305-0079, email address:lieu.david@epa.gov.

EPA is proposing a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) for the chemical substance identified generically as ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt, which was the subject of premanufacture notice (PMN) P-01-384. This action would require persons who intend to manufacture, import, or process this chemical substance for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit the activity before it occurs.

DATES:

Comments must be received on or before January 18, 2013.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2011-0577, by one of the following methods:

•Hand Delivery:OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. ATTN: Docket ID Number EPA-HQ-OPPT-2011-0577. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to docket ID number EPA-HQ-OPPT-2011-0577. EPA's policy is that all comments received will be included in the docket without change and may be made available online athttp://www.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or email. The regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket:All documents in the docket are listed in the docket index available athttp://www.regulations.gov.Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically athttp://www.regulations.gov,or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure.

You may be potentially affected by this action if you manufacture, import, process, or use the chemical substancegenerically identified as ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt (generic). Potentially affected entities may include:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed underFOR FURTHER INFORMATION CONTACT.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to a final SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final SNUR, are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

B. What should I consider as I prepare my comments for EPA?

1.Submitting CBI.Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. BackgroundA. What action is the agency taking?

EPA is proposing a SNUR under section 5(a)(2) of TSCA for the chemical substance identified generically as ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt, which was the subject of PMN P-01-384. This SNUR would require persons who intend to manufacture, import, or process the chemical substance for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

In theFederal Registerof April 27, 2012 (77 FR 23236) (FRL-9343-4), EPA issued a direct final rule which established a SNUR for ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt (generic) in accordance with the procedures at 40 CFR 721.160(c)(3)(i). EPA received notice of intent to submit adverse comments on this SNUR. Therefore, as required by § 721.160(c)(3)(ii), EPA withdrew the direct final SNUR in theFederal Registerof July 25, 2012 (77 FR 43520) (FRL-9356-1), and is now issuing this proposed rule on the chemical substance. The record for the direct final SNUR on this substance was established as docket EPA-HQ-OPPT-2011-0577. That record includes information considered by the Agency in developing the direct final rule and the notice of intent to submit adverse comments.

B. What is the agency's authority for taking this action?

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 721.5.

C. Applicability of General Provisions

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to this SNUR must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in theFederal Registerits reasons for not taking action.

III. Significant New Use Determination

Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant newuse must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.

To determine what would constitute a significant new use for the chemical substance that is the subject of this proposed SNUR, EPA considered relevant information about the toxicity of the chemical substance, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.

IV. Substance Subject to This Proposed Rule

This proposed SNUR is for a PMN substance which EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “non-section 5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all non-section 5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.

Basis for action:The PMN states that the generic (non-confidential) use of the substance will be as a colorant for aqueous ink applications. Based on ecological structure activity relationship (EcoSAR) analysis of test data on analogous amphoteric dyes, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 70 parts per billion (ppb) of the PMN substance in surface waters for greater than 20 days per year. This 20-day criterion is derived from partial life cycle tests (daphnid chronic and fish early-life stage tests) that typically range from 21 to 28 days in duration. EPA predicts toxicity to aquatic organisms may occur if releases of the PMN substance to surface water exceed releases from the use described in the PMN. For the use described in the PMN, environmental releases did not exceed 70 ppb for more than 20 days per year. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance other than as described in the PMN, or any release of a manufacturing waste stream containing the PMN substance into the waters of the United States without prior chemical destruction or conversion, may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii).

Recommended testing:EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400) and a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300) would help to characterize the environmental effects of the PMN substance.

CFR citation:40 CFR 721.10308.

V. Rationale and Objectives of the Proposed RuleA. Rationale

During review of the PMN submitted for the chemical substance generically identified as ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.

Based upon comments received on the direct final rule, the proposed SNUR for 40 CFR 721.10308, includes the following changes:

1. Redesignation of paragraph (a)(2)(i) as (a)(2)(ii).

2. Revision of the new paragraph (a)(2)(ii).

3. Addition of new paragraph (a)(2)(i).

B. Objectives

EPA is proposing this SNUR for ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt, which has undergone PMN review, because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this proposed rule:

• EPA would receive notice of any person's intent to manufacture, import, or process this chemical substance for the described significant new use before that activity begins.

• EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing this chemical substance for the described significant new use.

• EPA would be able to regulate prospective manufacturers, importers, or processors of this chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet athttp://www.epa.gov/opptintr/existingchemicals/pubs/tscainventory/index.html.

VI. Applicability of the Proposed Rule to Uses Occurring Before Effective Date of the Final Rule

To establish a significant “new” use, EPA must determine that the use is not ongoing. The chemical substance subject to this proposed rule has undergone premanufacture review. EPA is soliciting comments on whether any of the uses proposed as significant new uses are ongoing.

As discussed in the final SNUR rule published in theFederal Registerissue of April 24, 1990, (55 FR 17376), EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of the previous direct final rule rather than as of the effective date of this final rule. If uses begun after publication of the direct final were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements because a person coulddefeat the SNUR by initiating the significant new use before this final rule became effective, and then argue that the use was ongoing before the effective date of the rule. Thus, persons who begin commercial manufacture, import, or processing of the chemical substances regulated through this SNUR will have to cease any such activity before the effective date of this rule. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including any extensions, expires.

EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person meets the conditions of advance compliance under § 721.45(h), the person is considered exempt from the requirements of the SNUR.

VII. Test Data and Other Information

EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:

1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).

2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).

In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. would list those tests. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go tohttp://www.epa.gov/ocsppand select “Test Methods and Guidelines.”

The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substance.

• Potential benefits of the chemical substance.

• Information on risks posed by the chemical substance compared to risks posed by potential substitutes.

VIII. SNUN Submissions

According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically athttp://www.epa.gov/opptintr/newchems.

IX. Economic Analysis

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substance during the development of the direct final rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2011-0577.

X. Statutory and Executive Order ReviewsA. Executive Order 12866

This proposed rule would establish a SNUR for one chemical substance that was the subject of a PMN. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).

B. Paperwork Reduction Act

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501et seq.,an Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in Title 40 of the CFR, after appearing in theFederal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable. EPA is amending the table in 40 CFR part 9 to list the OMB approval number for the information collection requirements contained in this proposed rule. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB's implementing regulations at 5 CFR part 1320. This Information Collection Request (ICR) was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), to amend this table without further notice and comment.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

C. Regulatory Flexibility Act

On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601et seq.), that promulgation of a SNUR does not have a significant economic impact on a substantial number of small entities where the following are true:

1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

2. The SNUR submitted by any small entity would not cost significantly more than $8,300.

A copy of that certification is available in the docket for this proposed rule.

This proposed rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit IX. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:

• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

• Submission of the SNUN would not cost any small entity significantly more than $8,300.

Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.D. Unfunded Mandates Reform Act (UMRA)

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this proposed rule when promulgated as final. As such, EPA has determined that this proposed rule, when promulgated as final, would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

E. Executive Order 13132

This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).

F. Executive Order 13175

This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this proposed rule.

G. Executive Order 13045

This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

H. Executive Order 13211

This proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Since this action does not involve any technical standards, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272 note), does not apply to this action.

J. Executive Order 12898

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

(a)Chemical substance and significant new uses subject to reporting.(1) The chemical substance identified generically as ethoxylated, propoxylated diamine diaryl substituted phenylmethane ester with alkenylsuccinate, dialkylethanolamine salt (PMN P-01-384) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

(2) The significant new uses are:

(i)Industrial, commercial, and consumer activities.Requirements as specified in § 721.80(j).

(ii)Release to water.Requirements as specified in § 721.90(a)(2)(v).

(b)Specific requirements.The provisions of subpart A of this part apply to this section except as modified by this paragraph.

(1)Recordkeeping.Recordkeeping requirements as specified in § 721.125(a), (b), (c), (i), and (k) are applicable to manufacturers, importers, and processors of the substance.

(2)Limitations or revocation of certain notification requirements.The provisions of § 721.185 apply to this section.

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Proposed rule.

SUMMARY:

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement the temporary policy provided by Office of Management and Budget (OMB) Policy Memorandum M-12-16, dated July 11, 2012, by adding anew clause to provide for the accelerated payments to small business subcontractors.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before February 19, 2013 to be considered in the formation of the final rule.

ADDRESSES:

Submit comments in response to FAR Case 2012-031 by any of the following methods:

•Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FAR Case 2012-031”. Select the link “Submit a Comment” that corresponds with FAR Case 2012-031. Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “FAR Case 2012-031” on your attached document.

Instructions:Please submit comments only and cite FAR case 2012-031, in all correspondence related to this case. All comments received will be posted without change tohttp://www.regulations.gov,including any personal and/or business confidential information provided.

DoD, GSA, and NASA are proposing to revise the FAR to implement a temporary policy that will provide for the acceleration of payments to small business subcontractors. On July 11, 2012, OMB released Policy Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors, that outlined steps agencies shall take to ensure that prime contractors pay their small business subcontractors as promptly as possible. The temporary OMB policy of accelerating payments ends on July 10, 2013.

II. Discussion and Analysis

The proposed rule establishes a new FAR clause at 52.232-XX, Providing Accelerated Payments to Small Business Subcontractors, which will require the prime contractor, upon receipt of accelerated payments from the Government, to make accelerated payments to small business subcontractors, to the maximum extent practicable, after receipt of a proper invoice and all proper documentation from small business subcontractors. The clause will be inserted into all new solicitations issued after the effective date of the final rule and resultant contracts, including solicitations and contracts for the acquisition of commercial items. This proposed rule does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

The change may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because small business subcontractors should be paid more expeditiously by their prime contractors, improving small business cash flow overall. Therefore, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603, and is summarized as follows:

This proposed rule implements the temporary policy provided by OMB Policy Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors, dated July 11, 2012, which is designed to accelerate payment from Federal contractors to their small business subcontractors. The rule imposes no reporting, recordkeeping, or other information collection requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules, and there are no known significant alternatives to the rule.

The Regulatory Secretariat will be submitting a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR case 2012-031) in correspondence.

V. Paperwork Reduction Act

The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

12.301Solicitation provisions and contract clauses for the acquisition of commercial items.

(d) * * *

(4) Insert the clause at 52.232-XX, Providing Accelerated Payments to Small Business Subcontractors, as prescribed in 32.009-2.

PART 32—CONTRACT FINANCING32.002[Amended]

3. Amend section 32.002 by removing from paragraph (a)(1) “32.005” and adding “32.009” in its place.

4. Add section 32.009 to read as follows:

32.009Providing accelerated payments to small business subcontractors.32.009-1General.

Pursuant to the policy provided by OMB Memorandum M-12-16, Agencies shall take measures to ensure that prime contractors pay small business subcontractors on an accelerated timetable to the maximum extent practicable, and upon receipt of accelerated payments from the Government. This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

32.009-2Contract clause.

Insert clause 52.232-XX, Providing Accelerated Payments to Small Business Subcontractors, in all solicitations and contracts.

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

5. Amend section 52.213-4 by—

a. Revising the date of the clause;

b. Redesignating paragraphs (a)(2)(v) through (vii) as paragraphs (a)(2)(vi) through (viii), respectively; and

(v) 52.232-XX, Providing Accelerated Payments to Small Business Subcontractors (DATE).

6. Add section 52.232-XX to read as follows:

52.232-XXProviding Accelerated Payments to Small Business Subcontractors.

As prescribed in 32.009-2, insert the following clause:

Providing Accelerated Payments to Small Business Subcontractors (Date)

(a) Upon receipt of accelerated payments from the Government, the Contractor shall make accelerated payments to a small business subcontractor, to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract, after receipt of a proper invoice and all other required documentation from the small business subcontractor.

(b) The acceleration of payments under this clause does not provide any new rights under the Prompt Payment Act.

(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small business concerns, including subcontracts with small business concerns for the acquisition of commercial items.

(End of Clause)[FR Doc. 2012-30550 Filed 12-18-12; 8:45 am]BILLING CODE 6820-EP-PDEPARTMENT OF THE INTERIORFish and Wildlife Service50 CFR Part 17[Docket No. FWS-R1-ES-2012-0097; FXES11130900000C2-123-FF09E32000]Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Delist the Southern Selkirk Mountains Population of Woodland CaribouAGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of 90-day petition finding and initiation of status review.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to delist the southern Selkirk Mountains population of woodland caribou (Rangifer tarandus caribou) from the Federal List of Endangered and Threatened Wildlife and Plants as determined under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial information indicating that delisting this population of the woodland caribou subspecies may be warranted. Therefore, with the publication of this notice, we initiate a review of the status of the subspecies to determine if delisting the southern Selkirk Mountains population of woodland caribou is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding the status of the woodland caribou subspecies (Rangifer tarandus caribou), the southern Selkirk Mountains population of woodland caribou, the mountain ecotype of the woodland caribou, and other possible woodland caribou distinct population segment configurations. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

DATES:

We request that we receive scientific and commercial data and other information pertinent to the petitioned action and the rangewide status review of the subspecies on or before January 18, 2013. The deadline for submitting information using the Federal eRulemaking Portal (see theADDRESSESsection below) is 11:59 p.m. Eastern Time on this date. After January 18, 2013, you must submit information directly to the Division of Policy and Directives Management (see theADDRESSESsection below). Please note that we might not be able to consider information that we receive after the above requested date.

ADDRESSES:

You may submit information by one of the following methods:

(1)Electronically:Go to the Federal eRulemaking Portal:http://www.regulations.gov.Search for FWS-R1-ES-2012-0097, which is the docket number for this action. You may submit information for the status review by clicking on “Comment Now!”

We will not accept emails or faxes. We will post all information we receive onhttp://www.regulations.gov.This generally means that we will post any personal information you provide us (see the Request for Information section below for more details).

FOR FURTHER INFORMATION CONTACT:

Brian Kelly, State Supervisor, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, Idaho 83709; by telephone at 208-378-5243; or by facsimile at 208-378-5262. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:Request for Information

When we make a finding that a petition presents substantial information indicating that listing, delisting, or reclassifying a species may be warranted, we are required to promptly initiate review of the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the woodland caribou subspecies (Rangifer tarandus caribou), including the southern Selkirk Mountains population and the mountain ecotype to which thispopulation belongs, from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:

(1) The subspecies' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Information relevant to whether the southern Selkirk Mountains population of woodland caribou is in need of protections from the Act and can be considered discrete and significant to the woodland subspecies.

(3) Information relevant to whether some other subset of the woodland caribou subspecies (for example, the mountain ecotype) is in need of protections under the Act, and can be considered discrete and significant to the subspecies.

Please include sufficient supporting documentation with your submission (such as maps, scientific journal articles, or other publications) to allow us to verify any scientific or commercial information you provide.

Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning this status review by one of the methods listed in theADDRESSESsection. If you submit information viahttp://www.regulations.gov,your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so.

Information and supporting documentation that we received and used in preparing this finding is available for review athttp://www.regulations.govat Docket No. FWS-R1-ES-2012-0097 or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Idaho Fish and Wildlife Office (see theFOR FURTHER INFORMATION CONTACTsection above).

Background

Section 4(b)(3)(A) of the Act (16 U.S.C. 1531et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in theFederal Register.

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly initiate a species status review, which we subsequently summarize in our 12-month finding.

Petition History

On May 14, 2012, we received a petition dated May 9, 2012, from the Pacific Legal Foundation, representing Bonner County, Idaho, and the Idaho State Snowmobile Association, requesting that the southern Selkirk Mountains population of woodland caribou (Rangifer tarandus caribou) be removed from the Federal List of Endangered and Threatened Wildlife and Plants. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a).

The petition asserted that we did not correctly apply the 1996 distinct population segment (DPS) policy in our 2008 5-year status review of the southern Selkirk Mountains population. Specifically, the petition questioned the analysis of discreteness and significance of this population to the mountain ecotype of woodland caribou, not the woodland caribou subspecies (i.e., the taxon to which it belongs), which the petitioners assert would be the appropriate interpretation of the DPS policy. As such, the petition asserted that the southern Selkirk Mountains DPS is not a listable entity, and therefore our listing of the population violates the Act. We acknowledge that information provided in the petition on the appropriateness of our DPS analysis in our 2008 status review warrants a more thorough review.

Distinct Population Segment Policy

Section 3(15) of the Act defines a “species” to include “* * * any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The National Marine Fisheries Service (NMFS) and the Service published a joint policy defining the phrase “distinct population segment” on February 7, 1996 (61 FR 4722) (DPS policy). According to the DPS policy, two elements must be satisfied in order for a population segment to qualify as a DPS: discreteness and significance. If a population segment qualifies as a DPS, the conservation status of that DPS is evaluated to determine whether it is threatened or endangered.

A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

If a population is found to be discrete, then it is evaluated for significance under the DPS policy on the basis of its importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon, (2) evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon, (3) evidence that the population represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside of its historical range, or (4) evidence that the population differs markedly from other populations of the species in its genetic characteristics.

If a population segment is both discrete and significant (i.e., it is a DPS) its evaluation for endangered or threatened status is based on the Act's definitions of those terms and a reviewof the factors listed in section 4(a) of the Act. According to our DPS policy, it may be appropriate to assign different classifications to different DPSs of the same vertebrate taxon.

Previous Federal Actions

The southern Selkirk Mountains population of woodland caribou was emergency listed as endangered in northeastern Washington, northern Idaho, and southeastern British Columbia under the Act on January 14, 1983 (48 FR 1722). A second emergency rule to extend emergency protection was published in theFederal Registeron October 25, 1983 (48 FR 49245). Final listing as endangered occurred on February 29, 1984 (49 FR 7390).

Notices of 90-day findings on two previous petitions to delist the southern Selkirk Mountains population of woodland caribou were published in theFederal Registeron November 29, 1993 (58 FR 62623), and November 1, 2000 (65 FR 65287). Our response to both petitions stated that the petitions did not present substantial scientific or commercial information indicating that delisting of the population may be warranted.

Based on a stipulated settlement agreement resulting from a complaint on a petition we received to designate critical habitat for the endangered southern Selkirk Mountains population of woodland caribou (Defenders of Wildlife et al.,v.Salazar,CV-09-15-EFS), we proposed critical habitat on November 30, 2011 (76 FR 74018). Our substantial 90-day finding on the current petition to delist the southern Selkirk Mountains population of woodland caribou does not affect the current listing status or our current process underway to determine critical habitat for the species at this time.

Finding

On the basis of our determination under section 4(b)(3)(A) of the Act, we find that the petition presents substantial information that the currently listed southern Selkirk Mountains population of woodland caribou may not be a listable entity under our 1996 DPS policy. We will reevaluate the significance of the southern Selkirk Mountains population to the taxon as a whole (i.e., the woodland caribou subspecies), and if necessary, the configuration and status of any distinct population segments.

The “substantial information” standard for a 90-day finding, under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations, differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not necessarily mean that the 12-month finding will conclude that the petitioned action is warranted. In other words, we might determine that the southern Selkirk Mountains population is a valid DPS. However, if the 12-month finding concludes that the petitioned action is warranted, we would then need to publish a proposed rule, subject to peer review and public comment, to initiate any change in the Federal listing status of the current DPS. In summary, the outcome of our status review could result in: (1) No change in the species' listing status; (2) a recommendation to delist the southern Selkirk Mountains population; or (3) a recommendation to list some different configuration of the woodland caribou subspecies.

With this substantial 90-day finding, we initiate a status review of the woodland caribou subspecies, and once it is completed, we will make a finding on whether delisting the southern Selkirk Mountains population of woodland caribou is warranted. Our review will also evaluate the status of the subspecies throughout its range and assess whether alternative DPS configurations of the subspecies are warranted. This finding fulfills any obligation under 16 U.S.C. 1533(b)(3)(A) and the regulations at 50 CFR 424.14(b).

Author

The primary authors of this notice are staff of the Idaho Fish and Wildlife Office (see theFOR FURTHER INFORMATION CONTACTsection above).

Authority

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes regulations to implement Amendment 18B to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region (Amendment 18B), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this rule would establish a longline endorsement program for the commercial golden tilefish component of the snapper-grouper fishery; establish initial eligibility requirements for a golden tilefish longline endorsement; establish an appeals process; allocate the commercial golden tilefish annual catch limit (ACL) among gear groups; establish a procedure for the transfer of golden tilefish endorsements; modify the golden tilefish trip limits; and establish a trip limit for commercial fishermen who do not receive a golden tilefish longline endorsement. The intent of this rule is to reduce overcapacity in the commercial golden tilefish component of the snapper-grouper fishery.

DATES:

Written comments must be received on or before January 18, 2013.

ADDRESSES:

You may submit comments on the proposed rule identified by “NOAA-NMFS-2012-0177” by any of the following methods:

Instructions:All comments received are a part of the public record and will generally be posted tohttp://www.regulations.govwithout change. All Personal Identifying Information (for example, name, address, etc.)voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required field if you wish to remain anonymous).

To submit comments through the Federal e-Rulemaking Portal:http://www.regulations.gov,enter “NOAA-NMFS-2012-0177” in the search field and click on “search.” After you locate the proposed rule, click the “Submit a Comment” link in that row. This will display the comment web form. You can then enter your submitter information (unless you prefer to remain anonymous), and type your comment on the web form. You can also attach additional files (up to 10 MB) in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Comments received through means not specified in this rule will not be considered.

For further assistance with submitting a comment, see the “Commenting” section athttp://www.regulations.gov/#!faqsor the Help section athttp://www.regulations.gov.

Electronic copies of Amendment 18B may be obtained from the Southeast Regional Office Web site athttp://sero.nmfs.noaa.gov/sf/SASnapperGrouperHomepage.htm. Amendment 18B includes a draft environmental assessment, an Initial Regulatory Flexibility Act Analysis (IRFA), a Regulatory Impact Review, and a Fishery Impact Statement.

Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in writing to Anik Clemens, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; and OMB, by email atOIRA Submission@omb.eop.gov,or by fax to 202-395-7285.

The snapper-grouper fishery off the southern Atlantic states includes golden tilefish and is managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Background

Recent amendments to the FMP have imposed more restrictive harvest limitations on snapper-grouper fishermen. In an effort to identify other species to harvest, more fishermen may target golden tilefish. Increased effort for golden tilefish would intensify derby fishing, or the “race to fish,” that already exists, which has resulted in a shortened fishing season for the last 6 years. The longline endorsement program would limit participation and reduce overcapacity in the commercial golden tilefish component of the snapper-grouper fishery, thereby easing derby conditions, which have occurred in recent years.

Management Measures Contained in This Proposed Rule

This proposed rule would: Establish a longline endorsement program for the commercial golden tilefish component of the snapper-grouper fishery; establish initial eligibility requirements for a golden tilefish longline endorsement; establish an appeals process; allocate the commercial golden tilefish ACL among gear groups; establish a procedure for the transfer of golden tilefish endorsements; modify the golden tilefish trip limits; and establish a trip limit for commercial fishermen who do not receive a golden tilefish longline endorsement. These actions are further addressed below.

Longline Endorsement Program for Golden Tilefish

This rule proposes to establish a longline endorsement program for the commercial golden tilefish component of the snapper-grouper fishery. The endorsement program would limit participation and reduce excess capacity in the fishery. This rule would establish eligibility criteria for the endorsement program based on an individual's golden tilefish landings using longline gear averaging at least 5,000 lb (2,268 kg), gutted weight, for the best 3 years within the period 2006 through 2011. In 2011, there were 753 Snapper-Grouper Unlimited Permits and trip-limited permits combined, and 28 vessels fished for golden tilefish using longline gear. Establishment of this endorsement program would reduce the number of potential longline participants from 753 to 23.

Establish an Appeals Process

The rule proposes to establish an appeals process for fishermen who might have been incorrectly excluded from receiving a golden tilefish longline endorsement. The appeals process would provide an appeal period of 90 days, starting on the effective date of the final rule. The National Appeals Office, a division of NMFS'Office of Management and Budget within NOAA, would review, evaluate, and render recommendations on appeals to the Regional Administrator (RA). The RA would review, evaluate, and render a final decision on each appeal. Hardship arguments would not be considered. The RA would determine the outcome of appeals based on NMFS' logbooks. If NMFS' logbooks are not available, the RA may use state landings records. Appellants would have to submit NMFS' logbooks or state landings records to support their appeal.

Allocate Commercial Golden Tilefish ACL Among Gear Groups

This rule proposes an allocation of the golden tilefish commercial ACL between the longline and hook-and-line components. Seventy-five percent of the ACL, or 405,971 lb (184,145 kg), gutted weight, would be allocated to the longline component and 25 percent of the ACL, or 135,324 lb (61,382 kg), gutted weight, would be allocated to the hook-and-line component.

Allow Transfer of Golden Tilefish Endorsements

This rule would establish a procedure to transfer a golden tilefish endorsement to an individual or entity that holds or simultaneously obtains a South Atlantic Unlimited Snapper-Grouper Permit. To be transferred, a golden tilefish endorsement must be valid or renewable. Golden tilefish endorsements may be transferred independently from the South Atlantic Unlimited Snapper-Grouper Permit with which it is associated. Landings history would not be transferred with the endorsement. NMFS would attribute golden tilefish landings to the associated South Atlantic Unlimited Snapper-Grouper Permit regardless of whether the landings occurred before or after the endorsement was issued. Golden tilefish endorsements would not be renewed automatically with the South Atlantic Unlimited Snapper-Grouper Permit with which it is associated. The endorsement would be renewed separately from the permit on the Federal Permit Application for Vessels Fishing in the Exclusive Economic Zone (EEZ). The provision to allow the transfer of an endorsement would be effective upon the effective date of the final rule.

Modify the Golden Tilefish Trip Limits

Based on current regulations, at the start of the fishing year (January 1), the trip limit is 4,000 lb (1,814 kg), guttedweight, for the commercial sector. If 75 percent of the ACL is reached before September 1 of the fishing year, the trip limit is reduced to 300 lb (136 kg), gutted weight. The step-down trip limit was originally intended to allow hook-and-line fishermen access to golden tilefish in the fall. In recent years, a derby fishery has developed for golden tilefish and the ACL has been met so rapidly that the 300-lb (136-kg), gutted weight, trip limit has not been triggered. Therefore, the 300-lb (136-kg), gutted weight, trip limit is not having its intended effect of extending the fishing season. Moreover, having separate allocations and ACLs for longline and hook-and-line gear makes the 300-lb (136-kg), gutted weight, trip limit unnecessary. The amendment would eliminate the step-down trip limit and the commercial trip limit of 4,000 lb (1,814 kg), gutted weight, would remain. Hook-and-line fishermen would still be able to harvest golden tilefish under the hook-and-line ACL.

Establish a Trip Limit for Commercial Fishermen Who Do Not Receive a Golden Tilefish Longline Endorsement

This rule proposes to establish a trip limit of 500 lb (227 kg), gutted weight, for the golden tilefish component of the snapper-grouper fishery for commercial fishermen who do not receive a longline endorsement. A vessel with a golden tilefish longline endorsement would not be eligible to fish under this trip limit with other gear (i.e.,hook-and-line).

Other Changes Proposed in This Rule That Are Not Contained in Amendment 18B

Amendment 17B was approved by the Secretary of Commerce on December 21, 2010. The final rule for Amendment 17B to the FMP (75 FR 82280, December 30, 2012), implemented ACLs and accountability measures (AMs) for eight snapper-grouper species in the FMP that are undergoing overfishing, and for black grouper, which was recently assessed and determined to not be undergoing overfishing or overfished; modified management measures to limit total mortality of those species to the ACL; and added ACLs, annual catch targets (ACTs), and AMs to the list of management measures that may be amended via the framework process. In that final rule for Amendment 17B, NMFS inadvertently neglected to list all of the framework revisions from Amendment 17B in the regulatory text. NMFS did not include, in paragraph (f) of 50 CFR part 622.48, the entire list of the items that may be established or modified in accordance with the FMP's updated framework procedure. The addition of these items to the FMP's framework procedure has already been subject to public comment during the public comment period for Amendment 17B. The Notice of Availability for Amendment 17B published on September 22, 2010 (75 FR 57734). These changes to paragraph (f) of 50 CFR part 622.48, were not included in the proposed or final rule for Amendment 17B, however, they were included in Amendment 17B. Thus, NMFS proposes to amend 50 CFR part 622.48, paragraph (f), to include the missing items from the list of the items that may be established or modified in accordance with the framework procedures in the FMP. This rule proposes to add the maximum sustainable yield proxy, optimum yield, a quota of zero, ACTs, maximum fishing mortality threshold, minimum stock size threshold, size limits, fishing year, and rebuilding plans to the list of items that can be established or modified in accordance with the framework procedure.

Additionally, on March 16, 2012, NMFS published the final rule to implement the Comprehensive Annual Catch Limit Amendment (Comprehensive ACL Amendment) to the Snapper-Grouper FMP, the Golden Crab Fishery of the South Atlantic Region FMP, the Dolphin and Wahoo Fishery off the Atlantic States FMP, and the Pelagic Sargassum Habitat of the South Atlantic Region FMP (77 FR 15916, March 16, 2012). In part, the Comprehensive ACL Amendment revised commercial AMs for many snapper-grouper species. During that revision, NMFS inadvertently failed to use language in the revised AMs similar to that contained in the quota closure provisions for South Atlantic snapper-grouper species. The South Atlantic snapper-grouper closure provisions regarding bag and possession limits, specified at 622.43(a)(5), contain both commercial and charter vessel/headboats in this provision. NMFS included charter vessel/headboats in regulatory text implementing the affected commercial AMs; however, NMFS inadvertently did not also include the term “commercial” at the time. Therefore, NMFS proposes to revise the phrase “Federal charter vessel/headboat permit” to read “Federal commercial or charter vessel/headboat permit”, specifically in 50 CFR 622.49, paragraphs (b)(4)(i)(A), (b)(7)(i)(A), (b)(8)(i)(A), (b)(9)(i)(A), (b)(10)(i)(A), (b)(13)(i)(A), (b)(14)(i)(A), (b)(15)(i)(A), (b)(16)(i)(A), (b)(17)(i)(A), (b)(19)(i)(A), (b)(20)(i)(A), (b)(21)(i)(A), (b)(23)(i)(A), (b)(24)(i)(A), (e)(1), (f)(1).

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with Amendment 18B, the Magnuson-Stevens Act and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an IRFA for this rule, as required by section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of and legal basis for this action are contained at the beginning of this section in the preamble and in theSUMMARYsection of the preamble. A copy of the full analysis is available from the NMFS (seeADDRESSES). A summary of the IRFA follows.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified.

The only new reporting, record-keeping, or other compliance requirements that would result from this proposed rule would be the requirement to have a commercial golden tilefish longline endorsement to fish for golden tilefish in the South Atlantic EEZ using longline gear or possess golden tilefish on a vessel in the South Atlantic EEZ with longline gear aboard. The initial endorsement will be sent directly to those qualifying for the endorsement. Renewals and transfers of endorsements are subject to the same fees as permits. Because the endorsement would be received through completion of the normal permitting process, no special professional skills would be required to satisfy this new compliance requirement.

NMFS expects the proposed rule to directly affect commercial fishermen in the South Atlantic snapper-grouper fishery. The Small Business Administration established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide.

During 2005-2011, a total of 142 hook-and-line vessels with valid permits to operate in the commercial snapper-grouper fishery landed golden tilefish. These vessels generated annual average dockside revenues of approximately $69,000 (2010 dollars) from golden tilefish, or $603,000 (2010 dollars) from all species, inclusive of golden tilefish, caught in the same trips as golden tilefish. On average, each of these vessels generated about $4,246 (2010 dollars) in gross revenues. During the same period, a total of 43 longline vessels with valid permits to operate in the commercial snapper-grouper fishery landed golden tilefish. Their annual average revenues were about $835,000 (2010 dollars) from golden tilefish, or $1,218,000 (2010 dollars) from all species, inclusive of golden tilefish, caught in the same trips as golden tilefish. Each of these vessels, therefore, generated an average of approximately $28,330 (2010 dollars) in gross revenues.

Based on revenue information, all commercial vessels affected by this proposed rule can be considered small entities.

NMFS expects the proposed rule to directly affect all federally permitted commercial vessels harvesting golden tilefish and for-hire vessels that operate in the South Atlantic snapper-grouper fishery. All directly affected entities have been determined, for the purpose of this analysis, to be small entities. Therefore, NMFS determined that the proposed action would affect a substantial number of small entities.

Because NMFS determined all entities expected to be affected by the actions in this proposed rule are small entities, the issue of disproportional effects on small versus large entities does not arise in the present case.

Establishing a longline endorsement system would limit the expansion of capital and effort in the longline component of the commercial sector for golden tilefish. Because this component is by far the dominant component in the commercial harvest of golden tilefish, an endorsement system could extend the commercial fishing season, thereby providing the industry opportunities to remain profitable. However, unlike the case with a management system that assigns harvesting privileges to fishermen, an endorsement system would not eliminate the underlying incentive to “race to fish.” With this incentive remaining intact, effort and capital stuffing (increasing vessel capacity, speed or fishing accessories) would continue to increase over time and eventually shorten the fishing season.

Under the proposed criteria, 24 vessels that used longline gear during 2006-2011 would qualify for a longline endorsement; 19 vessels that used longline gear during the time period would not qualify for an endorsement. Qualifying vessels generated revenues of about $788,000 (2010 dollars) annually from golden tilefish while non-qualifying vessels generated an average of about $47,000 (2010 dollars) in annual revenues from golden tilefish. The decrease in revenues to non-qualifying vessels would be about 17 percent of their total revenues. Non-qualifying vessels could switch gear and recoup part of their losses; nonetheless, their short-term profits would still likely suffer. However, relative to the total profits of commercial vessels in the snapper-grouper fishery, revenue and profit reductions to non-qualifying vessels would not be significant. In terms of revenues, a loss of $47,000 (2010 dollars) would be about 3 percent of total revenues by vessels landing golden tilefish and less than 1 percent of total revenues by all commercial vessels in the South Atlantic. Moreover, revenue and profit losses to non-qualifying vessels would likely be gained by qualifying vessels. Considering the fishing season closures in recent years, qualifying vessels would most likely harvest whatever is forgone by non-qualifying vessels. This would increase the revenues and possibly the profits of qualifying vessels, and would decrease the profits of non-qualifying vessels. Whether this would increase overall industry profits cannot be ascertained based on available information. It is possible that short-term industry profits would increase or at least not dissipate quickly. With fewer participants in the longline component, and noting that the longline component is by far the dominant component in the commercial harvest of golden tilefish, the fishing season for the longline component could lengthen and thereby qualifying vessels could command better prices. These effects, however, would be transitory. The incentive to “race to fish” is still intact so that effort from qualifying vessels could increase in the medium- and long-term, eventually erasing any profit gains from establishing the endorsement.

Establishing an appeals process for fishermen initially excluded from the golden tilefish longline endorsement would provide opportunities for those legitimately qualified to receive their endorsement. Given the narrow basis for appeals (e.g., landings reported on NMFS logbook records or state landing records), only a limited number of appeals would likely be successful.

Establishing a 75-percent longline and 25-percent hook-and-line allocation of the golden tilefish commercial ACL would ensure the continued presence of the hook-and-line component in the commercial harvest of golden tilefish. Relative to the baseline, this allocation ratio would redistribute the harvest of golden tilefish from the longline component to the hook-and-line component. This, in theory, would result in negative effects on the longline component and positive effects on the hook-and-line component. However, because the commercial quota is increased well above the baseline landings of both components, this allocation ratio would yield positive revenue effects to both components. Revenue gains would be $302,000 (2010 dollars) to the entire hook-and-line component and $271,000 (2010 dollars) to the entire longline component, or total revenue effects of about $573,000 (2010 dollars) for the whole commercial sector. NMFS expects that these positive revenue effects would translate to positive profit effects on both components.

Allowing the transfer of golden tilefish longline endorsements between individuals or entities with South Atlantic Unlimited Snapper-Grouper Permits would open opportunities for increasing the value of the endorsement asset and for the more efficient operators to engage in the fishery. Such opportunities, however, would still be limited by the requirement that transfers of endorsements be made between individuals/entities possessing South Atlantic Snapper-Grouper Unlimited Permits. These permits are under a limited entry program.

Eliminating the 300-lb (136-kg), gutted weight, commercial trip limit when 75 percent of the commercial ACL is taken would benefit longline vessels. This ratcheting down of the trip limit was intended to preserve the presence of the hook-and-line component, but is now unnecessary because the hook-and-line component has a separate allocation. Thus, this alternative would allow the longline component, whose trips would likely be unprofitable under a trip limit of 300 lb (136 kg), gutted weight, to efficiently use its capacity and maximize its revenues and likely profits as well.

Establishing a 500-lb (223-kg), gutted weight, trip limit for commercial fishermen who would not receive a longline endorsement would affect 14 out of 249 trips based on average 2005-2011 data. This trip limit would reduce per trip landings, and it is also expectedto reduce total landings at least in its first year of implementation. Total landings would be reduced by about 24,000 lb (10,886 kg), gutted weight, worth $69,000 (2010 dollars). The effects of a trip limit are generally temporary; vessels incurring revenue reductions due to a trip limit could recoup their losses by taking more trips so long as those trips remain profitable. Considering the relatively few trips that would be affected, this trip limit would likely not be too constraining as to reduce the sector's overall profits.

The following discussion analyzes the alternatives that were not chosen as preferred by the Council.

Two alternatives, including the preferred alternative that would establish an endorsement system, were considered for limiting participation in the golden tilefish component of the snapper-grouper fishery through an endorsement system. The only other alternative is the no action alternative. This would not limit effort in the commercial harvest of golden tilefish and thus would not address the evolving derby (race to fish) in the commercial sector.

Two alternatives were considered for establishing eligibility requirements for the longline endorsement. The first alternative, the no action alternative, would make the endorsement system ineffective in addressing increasing effort in the commercial sector because everyone with valid permits could receive an endorsement. The second alternative consists of 9 sub-alternatives, including the preferred sub-alternative, with each providing for an endorsement eligibility based on minimum amount of golden tilefish landings using longline gear during a given period. The first sub-alternative would require a minimum of 2,000 lb (907 kg), gutted weight, total longline landings during 2006-2008. The second sub-alternative would require a minimum of 5,000 lb (2,268 kg), gutted weight, total longline landings during 2006-2008. The third sub-alternative would require a minimum of 5,000 lb (2,268 kg), gutted weight, average longline landings during 2006-2008. The fourth sub-alternative would require a minimum of 5,000 lb (2,268 kg), gutted weight, average longline landings during 2007-2009. The fifth sub-alternative would require a minimum of 10,000 lb (4,536 kg), gutted weight, average longline landings during 2007-2009. The sixth sub-alternative would require a minimum of 5,000 lb (2,268 kg), gutted weight, average longline landings for the best 3 years during 2006-2010. The seventh sub-alternative would require a minimum of 5,000 lb (2,268 kg), gutted weight, average longline landings for the best 3 years during 2006-2011. The eighth sub-alternative would require a minimum of 10,000 lb (4,536 kg), gutted weight, average longline landings for the best 3 years during 2006-2011. Each of these sub-alternatives would qualify fewer entities for the endorsement and thus would result in greater forgone revenues than the preferred sub-alternative.

Three alternatives, including the preferred alternative, were considered for establishing an appeals process for fishermen initially excluded from the endorsement program. The first alternative, the no action alternative, would not establish an appeals process. This alternative has the potential to unduly penalize participants, mainly due to errors in data reporting or recording. The second alternative is the same as the preferred alternative, except it would additionally establish a special board composed of state directors/designees that would review, evaluate, and make individual recommendations to the RA. This alternative would introduce an additional administrative burden that may not improve the appeals process considering that the only major issue subject to appeals is the landings record.

Four alternatives, including the preferred alternative, were considered for allocating the commercial golden tilefish ACL among gear groups. The first alternative, the no action alternative, would not specify an allocation among gear groups. With this alternative, the already diminished share of the hook-and-line component in the harvest of golden tilefish could further decline. Consequently, further reductions in the component's revenues and profits could occur, negating the Council's intent to minimize negative economic impacts on this component. The second alternative would establish an 85 percent longline and 15 percent hook-and-line allocation, and the third alternative, a 90 percent longline and 10 percent hook-and-line allocation. These two other alternatives would favor the longline component, but would allow the hook-and-line component to continue its operations. Similar to the preferred alternative, the effects of these alternatives on overall industry profits cannot be determined based on available information.

Two alternatives, including the preferred alternative, were considered for allowing transferability of longline endorsements. The first alternative, the no action alternative, would not allow transfers of endorsements. This alternative would limit the value of the endorsement asset and hinder the participation of potentially more efficient operators. The second alternative (preferred) includes two sub-alternatives, of which one is the preferred sub-alternative that would allow transfers of endorsements upon implementation of the program. The other sub-alternative would not allow transfers of endorsements during the first 2 years of the program. This sub-alternative would mainly delay the entrance of more efficient operators and the generation of higher-valued endorsement assets.

Three alternatives, including the preferred alternative, were considered for modifying the golden tilefish trip limit. The first alternative, the no action alternative, would retain the 4,000-lb (1,814-kg), gutted weight, trip limit that would be reduced to 300 lb (136 kg), gutted weight, if 75 percent of the commercial ACL is reached by September 1. The trip limit reduction to 300 lb (136 kg), gutted weight, which was partly established to preserve the presence of the hook-and-line component, is no longer necessary with the establishment of a separate allocation for each gear group. The second alternative would prohibit longline fishing for golden tilefish when 75 percent of the commercial ACL is reached. This alternative is not necessary with the establishment of a separate allocation for each gear group. In addition, this would constrain the profits longline vessels could derive from the harvest of golden tilefish.

Six alternatives, including the preferred alternative, were considered for establishing a trip limit for commercial fishermen who do not receive a longline endorsement. The first alternative, the no action alternative, would retain the 4,000-lb (1,814-kg), gutted weight, trip limit that would be reduced to 300 lb (136 kg), gutted weight, when 75 percent of the commercial ACL is reached. The second alternative would establish a 300-lb (136-kg), gutted weight, trip limit; the third alternative, a 400-lb (181-kg), gutted weight, trip limit; the fourth, a 100-lb (45-kg), gutted weight, trip limit; and, the fifth alternative, a 200-lb (91-kg), gutted weight, trip limit. Relative to the preferred alternative, all these other trip limits would be more restrictive and thus would likely result in larger reductions in vessel revenues and profits per trip.

In addition to the actions considered in Amendment 18B included in this proposed rule, this proposed rule would make additional changes to the regulatory text in 50 CFR parts 622.48 and 622.49. These proposed changes are described under the heading “OtherChanges Proposed in this Rule that are not Contained in Amendment 18B” in the preamble of this proposed rule. These changes are either clerical or simply clarify language associated with prior regulatory action. As a result, none of these proposed changes in the regulatory text would be expected to result in any reduction in profits to any small entities.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection-of-information displays a currently valid Office of Management and Budget (OMB) control number.

This proposed rule contains collection-of-information requirements subject to the PRA. NMFS estimates the requirement for South Atlantic Unlimited Snapper-Grouper Permit holders to submit their logbook information if they are appealing their landings data for a golden tilefish longline endorsement to average 2 hours per response. NMFS estimates the requirement to check boxes on the Federal Permit Application Form for a new endorsement, renewal, or transfer of the golden tilefish endorsement to average 1 minute per response. These estimates of the public reporting burden include the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

These requirements have been submitted to OMB for approval. NMFS seeks public comment regarding: Whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection-of-information, including through the use of automated collection techniques or other forms of information technology. Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to OMB (seeADDRESSES).

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

1. The authority citation for part 622 continues to read as follows:

Authority:

16 U.S.C. 1801et seq.

2. In § 622.4, paragraph (a)(2)(vi) is revised, paragraph (a)(2)(xvi) is added, and the first sentence in paragraph (g)(1) is revised to read as follows:

§ 622.4Permits and fees.

(a) * * *

(2) * * *

(vi)South Atlantic snapper-grouper.For a person aboard a vessel to be eligible for exemption from the bag limits for South Atlantic snapper-grouper in or from the South Atlantic EEZ, to sell South Atlantic snapper-grouper in or from the South Atlantic EEZ, to engage in the directed fishery for golden tilefish in the South Atlantic EEZ, to use a longline to fish for South Atlantic snapper-grouper in the South Atlantic EEZ, or to use a sea bass pot in the South Atlantic EEZ between 35°15.19′ N. lat. (due east of Cape Hatteras Light, NC) and 28°35.1′ N. lat. (due east of the NASA Vehicle Assembly Building, Cape Canaveral, FL), either a commercial vessel permit for South Atlantic Unlimited Snapper-Grouper Permit or a trip-limited permit for South Atlantic snapper-grouper must have been issued to the vessel and must be on board. A vessel with a trip-limited commercial permit is limited on any trip to 225 lb (102.1 kg) of snapper-grouper. See § 622.18 for limitations on the use, transfer, and renewal of a commercial vessel permit for South Atlantic snapper-grouper.

(xvi)South Atlantic golden tilefish longline endorsement.For a person aboard a vessel, for which a valid commercial vessel permit for South Atlantic snapper-grouper unlimited has been issued, to fish for or possess golden tilefish in the South Atlantic EEZ using longline gear, a South Atlantic golden tilefish longline endorsement must have been issued to the vessel and must be on board. A permit or endorsement that has expired is not valid. This endorsement must be renewed annually and may only be renewed if the associated vessel has a valid commercial vessel permit for South Atlantic snapper-grouper unlimited or if the endorsement and associated permit are being concurrently renewed. The RA will not reissue this endorsement if the endorsement is revoked or if the RA does not receive a complete application for renewal of the endorsement within 1 year after the endorsement's expiration date.

(A)Initial eligibility.To be eligible for an initial South Atlantic golden tilefish longline endorsement, a person must have been issued and must possess a valid or renewable commercial vessel permit for South Atlantic snapper-grouper unlimited that has golden tilefish landings using longline gear averaging at least 5,000 lb (2,268 kg), gutted weight, over the best 3 years within the period 2006-2011. Excluded from this eligibility, are trip-limited permits (South Atlantic snapper-grouper permits that have a 225-lb (102.1-kg) limit of snapper-grouper). NMFS will attribute all applicable golden tilefish landings associated with a current South Atlantic snapper-grouper unlimited permit for the applicable landings history, to the current permit owner, including golden tilefish landings reported by a person(s) who held the permit prior to the current permit owner. Only legal landings reported in compliance with applicable state and Federal regulations are acceptable.

(B)Initial issuance.On or about [date of publication of final rule in theFederal Register], the RA will mail each eligible permittee a golden tilefish longline endorsement via certified mail, return receipt requested, to the permittee's address of record as listed in NMFS' permit files. An eligible permittee who does not receive an endorsement from the RA, must contact the RA no later than [date 30 days after date of publication of final rule in theFederal Register], to clarify his/her endorsement status. A permittee who is denied an endorsement based on the RA's initial determination of eligibility and who disagrees with that determination may appeal to the RA.

(C)Procedure for appealing golden tilefish longline endorsement eligibility and/or landings information.The only items subject to appeal are initial eligibility for a golden tilefish longline endorsement based on ownership of a qualifying snapper-grouper permit, the accuracy of the amount of landings, and the correct assignment of landings to the permittee. Appeals based on hardship factors will not be considered. Appealsmust be submitted to the RA postmarked no later than [date 120 days after publication of final rule in theFederal Register], and must contain documentation supporting the basis for the appeal. The National Appeals Office will review, evaluate, and render recommendations on appeals to the RA. The RA will then review each appeal, render a final decision on each appeal, and advise the appellant of the final NMFS decision.

(1)Eligibility appeals.NMFS' records of snapper-grouper permits are the sole basis for determining ownership of such permits. A person who believes he/she meets the permit eligibility criteria based on ownership of a vessel under a different name, for example, as a result of ownership changes from individual to corporate or vice versa, must document his or her continuity of ownership and must submit that information with their appeal.

(2)Landings appeals.Determinations of appeals regarding landings data for 2006 through 2011 will be based on NMFS' logbook records, submitted on or before October 31, 2012. If NMFS' logbooks are not available, the RA may use state landings records or data for the period 2006 through 2011 that were submitted in compliance with applicable Federal and state regulations on or before October 31, 2012.

(D)Transferability.A valid or renewable golden tilefish endorsement may be transferred between any two entities that hold, or simultaneously obtain, a valid South Atlantic snapper-grouper unlimited permit. An endorsement may be transferred independently from the South Atlantic snapper-grouper unlimited permit. NMFS will attribute golden tilefish landings to the associated South Atlantic Unlimited Snapper-Grouper Permit regardless of whether the landings occurred before or after the endorsement was issued. Only legal landings reported in compliance with applicable state and Federal regulations are acceptable.

(E)Fees.No fee applies to the initial issuance of a golden tilefish longline endorsement. NMFS charges a fee for each renewal or replacement or transfer of such endorsement and calculates the amount of each fee in accordance with the procedures of the NOAA Finance Handbook for determining the administrative costs of each special product or service. The handbook is available from the RA. The appropriate fee must accompany each application for renewal or replacement or transfer.

(g) * * *

(1) * * * A vessel permit, license, or endorsement or a dealer permit or endorsement issued under this section is not transferable or assignable, except as provided in paragraph (m) of this section for a commercial vessel permit for Gulf reef fish, in paragraph (o) of this section for a king mackerel gillnet permit, in paragraph (q) of this section for a commercial vessel permit for king mackerel, in paragraph (r) of this section for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish, in paragraph (s) of this section for a commercial vessel moratorium permit for Gulf shrimp, in § 622.17(c) for a commercial vessel permit for golden crab, in § 622.18(b) for a commercial vessel permit for South Atlantic snapper-grouper, in § 622.19(b) for a commercial vessel permit for South Atlantic rock shrimp, in § 622.4(a)(2)(xiv)(D) for an eastern Gulf reef fish bottom longline endorsement, in § 622.4(a)(2)(xv)(D) for a South Atlantic black sea bass pot endorsement, in § 622.4(a)(2)(xvi)(D) for a South Atlantic golden tilefish longline endorsement. * * *

3. In § 622.41, paragraph (d)(6) is revised to read as follows:

§ 622.41Species specific limitations.

(d) * * *

(6)Longline species limitation.A vessel that has on board a valid Federal commercial permit for South Atlantic snapper-grouper, excluding wreckfish, that fishes in the EEZ on a trip with a longline on board, may possess only the following South Atlantic snapper-grouper: snowy grouper, yellowedge grouper, misty grouper, golden tilefish, blueline tilefish, and sand tilefish. See § 622.4(a)(2)(xvi) for the requirement to possess a valid South Atlantic golden tilefish longline endorsement to fish for golden tilefish in the South Atlantic EEZ using longline gear. For the purpose of this paragraph, a vessel is considered to have a longline on board when a power-operated longline hauler, a cable of diameter suitable for use in the longline fishery on any reel, and gangions are on board. Removal of any one of these three elements constitutes removal of a longline.

(i)Commercial sector—(A)Hook-and-line component.If commercial landings, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.42(e)(2)(ii), the AA will file a notification with the Office of the Federal Register to close the hook-and-line component of the commercial sector for the remainder of the fishing year.

(B)Longline component.If commercial landings, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.42(e)(2)(iii), the AA will file a notification with the Office of the Federal Register to close the longline component of the commercial sector for the remainder of the fishing year. After the commercial ACL for the longline component is reached or projected to be reached, golden tilefish may not be fished for or possessed by a vessel with a golden tilefish longline endorsement.

(4) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(6) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(7) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(8) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(9) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(10) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(12) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(13) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(14) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(15) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(16) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(17) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(19) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(20) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(21) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(23) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(24) * * *

(i) * * *

(A) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(e) * * *

(1) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

(f) * * *

(1) * * * This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,i.e.,in state or Federal waters.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes regulations to implement Amendment 17 to the Pacific Coast Salmon Fishery Management Plan for Commercial and Recreational Salmon Fisheries off the Coasts of Washington, Oregon, and California (Salmon FMP). Amendment 17, which was transmitted by the Pacific Fishery Management Council (Council) on November 5, 2012, to the Secretary of Commerce (Secretary) for review and approval, revises the maximum fishing mortality threshold (MFMT) for Quillayute fall coho, revises the FMP to correct typographical errors, updates reporting measures to reflect new technology, and updates or removes other obsolete or unnecessary language. The Northwest Regional Administrator has determined that the actions of Amendment 17 have all either been previously analyzed in a NEPA document or qualify for categorical exclusion (CE) from further NEPA analysis under NAO 216-6. NMFS also proposes minor updates to regulations unrelated to Amendment 17.

DATES:

Written comments on this proposed rule must be received on or before January 8, 2013.

ADDRESSES:

You may submit comments, identified by NOAA-NMFS-2012-0192, by any one of the following methods:

•Electronic Submissions:Submit all electronic public comments via the Federal e-Rulemaking Portalhttp://www.regulations.gov.To submit comments via the e-Rulemaking Portal, enter NOAA-NMFS-2012-0192 in the search box. Locate the document you wish to comment on from the resulting list and click on the “Comment Now” icon on the right of that line.

Instructions:Comments must be submitted by one of the above methods to ensure that they are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing onhttp://www.regulations.govwithout change. All personal identifying information (e.g.,name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Information relevant to this proposed rule, which includes a CE, a regulatory impact review (RIR), and an initial regulatory flexibility analysis (IRFA) are available for public review during business hours at the office of the Pacific Fishery Management Council (Council), at 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280, and are posted on its Web site (www.pcouncil.org). These documents are also linked on the NMFS Northwest Region Web site (www.nwr.noaa.gov). Copies of additional reports referred to in this document may also be obtained from the Council.

FOR FURTHER INFORMATION CONTACT:

Peggy Mundy at 206-526-4323, or Heidi Taylor at 562-980-4039.

SUPPLEMENTARY INFORMATION:Background

In 2011, NMFS partially approved Amendment 16 to the Salmon FMP. Amendment 16 established status determination criteria (SDC), and other management metrics, for stocks managed under the Salmon FMP. Regulatory changes to implement the approved portions of Amendment 16 were made effective in a Final Rule (76 FR 81851, December 29, 2011). In a letter to the Council, dated December 11, 2011, NMFS detailed the disapproval of one SDC, the proposed maximum fishing mortality threshold (MFMT) for Quillayute fall coho, and recommended that the Council submit an FMP amendment to address this item. In the course of reviewing Amendment 16, a variety of other, unconnected, issues were identified as needing revision in the FMP, largely to correct typographical errors, update notification and reporting measures to reflect new technology, and respond to a regulatory procedure issue in the schedule for annual management measures. However, these were identified after the Council had transmitted Amendment 16 to NMFS for approval. Amendment 17 has been developed to address the Quillayute fall coho MFMT and 14 other issues.

The Council transmitted the amendment to NMFS on November 5, 2012. NMFS published a Notice of Availability in theFederal Register(77 FR 67327, November 9, 2012) to notifythe public of the availability of the amendment and invite comments.

This proposed rule identifies changes to the regulations under 50 CFR 660 subpart H to implement Amendment 17. The Council has deemed the proposed regulations to be necessary and appropriate as required by section 303(c) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). This proposed rule also updates regulations under the same subpart, unrelated to Amendment 17, to remove obsolete text and update terminology.

Components of Amendment 17

The issues addressed by Amendment 17 are described below, in the order in which they affect the FMP.

FMP Chapter 3—Conservation

Amendment 17 Issue #1. Quillayute fall coho has an undefined MFMT, as shown in FMP table 3-1. This occurred because NMFS disapproved of the MFMT recommended by the Council under Amendment 16. Under Amendment 16, the Council recommended adopting an MFMT of 0.65 for all Washington Coast coho, to be consistent with the maximum exploitation rate allowed under the Pacific Salmon Treaty 2002 Southern Coho Management Plan. However, the Council had already accepted the Scientific and Statistical Committee approved estimate of 0.59 as the best estimate of FMSYfor Quillayute fall coho, as presented in Appendix E of the Amendment 16 Environmental Assessment. Because MFMT cannot exceed FMSY, that element of Amendment 16 was not approved and therefore, MFMT is currently undefined for Quillayute fall coho in the FMP. Amendment 17 adopts 0.59 for the value of MFMT for Quillayute fall coho.

Amendment 17 Issue #4. A description of Endangered Species Act (ESA) listed Chinook salmon is corrected to include federal ESA listing of two stocks.

Amendment 17 Issue #5. The description of methodology to estimate abundance for Oregon Production Index (OPI) coho is updated to reflect recent changes in scientific methodology.

Amendment 17 Issue #6. The discussion of management considerations for coho salmon north of Cape Falcon is updated to reflect recent consideration of impacts to two coho stocks.

Amendment 17 Issue #7. The description of impacts to pink salmon from the ocean fishery is updated to reflect recent analyses of exploitation rate for pink salmon, conducted since the Council adopted Amendment 16.

FMP Chapter 6—Measures To Manage the Harvest

Amendment 17 Issue #9. The discussion of minimum size limits is updated to better describe recent trends in how these management measures are used.

Amendment 17 Issues #11 and #12. Amendment 17 updates technology used to collect and report data from the fishery.

FMP Chapter 9—Schedule and Procedures for Preseason Modification of Regulations

Amendment 17 Issue #8. Amendment 17 removes mention of a public comment period after final management measures are published in theFederal Register. Annual management measures for the salmon fishery are published in theFederal Registeras a final rule; public comment periods are not applied to final rules. The public has an opportunity to comment throughout the Council's process of setting annual management measures, which includes two Council meetings and public hearings held in Washington, Oregon, and California. The Council publishes a notice in theFederal Registereach December that details the process for setting the next year's annual management measures and solicits comments. The Council's notice provides the schedule for Council meetings and public hearings, as well as the schedule of availability of planning documents, including Preseason Report II which contains the salmon management alternatives the Council adopts in March for further consideration at its April meeting where it adopts a final recommendation for the fishing season. The Council's notice informs the public of how to request copies of the preseason planning documents, how to view the documents online, and how to submit comments to the Council by mail, fax, email, or the Federal Rulemaking Portal:www.regulations.gov. All comments received are reviewed by both the Council and NMFS.

FMP Chapter 10—Inseason Management Actions and Procedures

Amendment 17 Issues #13 and #14. The language regarding notification and procedures for inseason actions is updated to reflect current technology and policies.

Amendment 17 Issue #15. The procedures for FMP amendment and emergency regulations are updated to be consistent with the MSA.

Changes to Regulations

This proposed rule includes changes to the existing regulations at 50 CFR 660.401et seq.,to implement Amendment 17, and to make additional updates. These are described below.

• Definitions (§ 660.402)

The definition of “Dressed, head-off length” of salmon is updated to remove reference to Figure 3 which no longer appears in the regulations. This is a general correction, not a component of Amendment 17.

• Exempted Fishing (§ 660.406)

The reference to “Regional Director” is updated to the current term “Regional Administrator.” This is a general correction, not a component of Amendment 17.

• Annual Actions (§ 660.408)

The references to “Regional Director” are updated to the current term “Regional Administrator,” and the word Chinook is capitalized. These are general corrections, not components of Amendment 17.

• Notification and Publication Procedures (§ 660.411)

Language providing for a public comment period after an action is effective is removed., and information on availability of data is updated.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistentwith Amendment 17, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Northwest Regional Administrator has determined that the actions of Amendment 17 have all either been previously analyzed in a NEPA document or qualify for categorical exclusion from further NEPA analysis under NAO 216-6.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in theSUMMARYand Classification sections of this proposed rule. A copy of the IRFA is available from NMFS (seeADDRESSES). The IRFA is expected to provide a: (1) Description of the reasons why action by the agency is being considered; (2) succinct statement of the objectives of, and legal basis for, the proposed rule; (3) description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply; (4) description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (5) an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule. The IRFA is also to expected to contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

Consistent with the stated objectives of applicable statutes, the analysis shall discuss significant alternatives such as: (1) Establishing differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarifying, consolidating, or simplifying compliance and reporting requirements under the rule for such small entities; and (3) using performance rather than design standards; and (4) exempting from coverage of the rule, or any part thereof, such small entities.

The reasons for why this action is being considered and the statement of objectives and legal basis for the proposed rule are discussed above in theSUMMARYand Classification sections of this proposed rule. The number of small entities that are affected is discussed below along with the other IRFA requirements.

The commercial entities directly regulated by the Pacific Council's Fishery Management Plan are non-tribal commercial trollers, tribal commercial trollers, and charterboats. During 2011, the most recent year for which NMFS has data, these fleets consisted of estimated 802 non-tribal trollers, 40 to 50 tribal trollers, and 438-495 charterboats. Accordingly, NMFS estimates this rule, if implemented, will impact approximately 1,300 small entities involved in the fishery.

Based on Pacific Coast Fisheries Information Network (PacFIN) data, a total of 802 non-tribal vessels participated in the West Coast commercial salmon fishery in 2011. This figure is 25 percent more than participated in 2010 (642), two-and-a-half times the number that participated in 2009 (313), and three-and-a-half times the number participating in 2008 (221). Total 2011 ex-vessel value of the Council-managed non-Indian commercial salmon fishery was $9.2 million, an increase of 26 percent over the prior year (adjusted for inflation). Ex-vessel value was nearly six times above its 2009 level ($1.6 million) and 85 percent lower than the 1979 through 1990 inflation-adjusted average of $60.7 million, and 41 percent above the recent five-year (2006-2010) inflation-adjusted average of $6.5 million. In 2011, the coastwide average inflation-adjusted ex-vessel value of salmon landings increased slightly compared to 2010, to $10,500 per non-tribal vessel (approximately 385 of these trollers account for 90% of the revenues for an average revenue of $22,000). Treaty Indian commercial fisheries off Washington operate under regulations established by the Council. While some of the treaty Indian harvest is for ceremonial and subsistence purposes, the vast majority of the catch is sold commercially. Commercial treaty Indian fisheries provide food to consumers and generate income in local and state economies through expenditures on harvesting, processing, and marketing of the catch. According to a Northwest Indian Fisheries Commission representative, the tribal fleet consists of 40 to 50 trollers. For 2011 the preliminary ex-vessel value of Chinook and coho landed in the treaty Indian ocean troll fishery was $1.7 million, compared with inflation-adjusted ex-vessel values of $1.37 million in 2010 and $1.0 million in 2009 (values based on PacFIN data). During 2011, the tribal troll harvest was worth $1.7 million exvessel, implying that the average revenue per tribal troller ranges from $34,000 to $42,500.

A fish-harvesting business is considered a “small” entity by the Small Business Administration (SBA) if it has annual receipts not in excess of $4.0 million. For marinas and charter/party boats, a small entity is one with annual receipts not in excess of $6.5 million. All of the businesses that would be affected by this action are considered small under SBA guidance. Average 2011 tribal and non-tribal vessel revenues are approximately $13,000 per vessel. Charterboats participating in the recreational salmon fishery in 2000 had average revenues ranging from $7,000 to $131,000, depending on vessel size class (Pacific States Marine Fisheries Commission study). These figures remain low, and NMFS has no information suggesting that these vessels have received annual revenues since 2000 such that they should be considered “large” entities under the RFA. As these average revenues are far below SBA's thresholds for small entities, NMFS has determined that all of these entities are small entities under SBA's definitions.

There are no new reporting or recordkeeping requirements. There are no relevant Federal rules that may duplicate, overlap, or conflict with this action. As the proposed regulations are administrative in nature, there are no significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any of the significant economic impact of the proposed rule on small entities. NMFS estimates that this rule will affect approximately 1,300 small entities. Under the RFA, an agency does not need to conduct an IRFA and/or Final Regulatory Flexibility Analysis (FRFA), if an agency can certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. The regulations being proposed are administrative in nature. Consequently, NMFS believes that this rule does not meet any of the tests of having a “significant” economic impact on a “substantial number” of small entities, nor does NMFS believe that this rule will place a substantial number of small entities at a significant competitive disadvantage compared to large entities. Nonetheless, NMFS has prepared an IRFA. Through the rulemaking process associated with this action, we arerequesting comments on this conclusion.

The proposed rule is administrative in nature and does not affect ESA listed species. However, NMFS has issued a number of ESA biological opinions that address the impacts of the Council managed salmon fisheries on listed salmonids as follows: March 8, 1996 (Snake River spring/summer and fall Chinook and sockeye), April 28, 1999 (Oregon Coast natural coho, Southern Oregon/Northern California coastal coho, Central California coastal coho), April 28, 2000 (Central Valley spring Chinook), April 27, 2001 (Hood Canal summer chum 4(d) limit), April 30, 2004 (Upper Willamette Chinook, Upper Columbia spring Chinook, Lake Ozette sockeye, Columbia River chum), April 30, 2004 Puget Sound Chinook, June 13, 2005 (California coastal Chinook), April 28, 2008 (Lower Columbia River natural coho), and April 30, 2010 (Sacramento River winter Chinook, and listed Puget Sound yelloweye rockfish, canary rockfish, and bocaccio), and April 26, 2012 (Lower Columbia River Chinook). NMFS reiterates its consultation standards for all ESA-listed salmon and steelhead species in their annual Guidance letter to the Council. In 2009, NMFS consulted on the effects of fishing under the Salmon FMP on the endangered Southern Resident Killer Whale Distinct Population Segment (SRKW) and concluded the salmon fisheries were not likely to jeopardize SRKW (biological opinion dated May 5, 2009).

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with Tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

PART 660—FISHERIES OFF WEST COAST STATES

1. The authority citation for part 660 continues to read as follows:

Authority:

16 U.S.C. 1801et seq.and 16 U.S.C. 773et seq.

2. In § 660.402, revise the definition for “Dressed, head-off length of salmon” to read as follows:

§ 660.402Definitions.

Dressed, head-off length of salmonmeans the shortest distance between the midpoint of the clavicle arch and the fork of the tail, measured along the lateral line while the fish is lying on its side, without resort to any force or mutilation of the fish other than removal of the head, gills, and entrails.

3. In § 660.406, revise paragraph (c) to read as follows:

§ 660.406Exempted fishing.

(c) Each vessel participating in any exempted fishery recommended by the Council and allowed by NMFS is subject to all provisions of this subpart, except those portions which relate to the purpose and nature of the exempted fishery. These exceptions will be specified in a permit issued by the Regional Administrator to each vessel participating in the exempted fishery and that permit must be carried aboard each participating vessel.

4. In § 660.408, revise paragraphs (d)(1)(vii) and (d)(2)(v) to read as follows:

§ 660.408Annual actions.

(d) * * *

(1) * * *

(vii)Other inseason provisions.Any increase or decrease in the recreational or commercial allowable ocean harvest resulting from an inseason restructuring of a fishery or other inseason management action does not require reallocation of the overall non-treaty allowable ocean harvest north of Cape Falcon between the recreational and commercial fisheries. Inseason redistribution of subarea quotas within the recreational fishery or the distribution of allowable coho catch transfers from the commercial fishery among subareas may deviate from the preseason distribution. Inseason management actions may be taken by the Regional Administrator to assure meeting the primary objective of achieving all-species fisheries without imposing Chinook restrictions in each of the recreational subareas north of Cape Falcon. Such actions might include, but are not limited to: Closure from 0 to 3, 0 to 6, 3 to 200, or 5 to 200 nm from shore; closure from a point extending due west from Tatoosh Island for 5 nm, then south to a point due west of Umatilla Reef Buoy, then due east to shore; closure from North Head at the Columbia River mouth north to Leadbetter Point; change in species that may be landed; or other actions as prescribed in the annual management measures.

(2) * * *

(v)Inseason reallocation.No later than August 15 each year, the Salmon Technical Team will estimate the number of coho salmon needed to complete the recreational seasons. Any coho salmon allocated to the recreational fishery that are not needed to complete the recreational seasons will be reallocated to the commercial fishery. Once reallocation has taken place, the remaining recreational quota will change to a harvest guideline. If the harvest guideline for the recreational fishery is projected to be reached on or before Labor Day, the Regional Administrator may allow the recreational fishery to continue through the Labor Day weekend only if there is no significant danger of impacting the allocation of another fishery or of failing to meet an escapement goal.

5. In § 660.411, revise paragraphs (b) and (c) to read as follows:

§ 660.411Notification and publication procedures.

(b)Public comment.If time allows, NMFS will invite public comment prior to the effective date of any action published in theFederal Register.

(c) Availability of data. The Regional Administrator will compile in aggregate form all data and other information relevant to the action being taken and will make them available for public review upon request, contact information will be published annually in theFederal Registerand announced on the telephone hotline. For actions affecting fisheries occurring primarily or exclusively in the fishery management area seaward of California, information relevant to the action also will be made available upon request by the Southwest Region, NMFS.

[FR Doc. 2012-30598 Filed 12-18-12; 8:45 am]BILLING CODE 3510-22-P77244Wednesday, December 19, 2012NoticesAGENCY FOR INTERNATIONAL DEVELOPMENTNotice of Public Information Collections Being Reviewed by the U.S. Agency for International Development; Comments RequestedSUMMARY:

U.S. Agency for International Development (USAID) is making efforts to reduce the paperwork burden. USAID invites the general public and other Federal agencies to take this opportunity to comment on the following proposed and/or continuing information collections, as required by the Paperwork Reduction Act for 1995. Comments are requested concerning: (a) Whether the proposed or continuing collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

Purpose:USAID is required by Executive order that Background investigations be conducted on all persons entering Federal Service. 5 U.S.C. 3301 and 5 CFR 5.2 require that investigations and determinations be made concerning the qualifications and fitness of applicants for federal employment. A National Agency Check and written inquiries are the minimum investigation required for employment in any department or agency of the Government as prescribed in Section 3(a) of the Executive Order 10450.

We are giving notice that the Secretary of Agriculture intends to renew the charter of the Advisory Committee on Beginning Farmers and Ranchers (the “Committee”) for an additional term of 2 years through December 14, 2014. We are also giving notice that the Secretary is soliciting nominations for membership for this Committee.

DATES:

Consideration will be given to nominations received on or before December 31, 2012.

Pursuant to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.), notice is hereby given that the Secretary of Agriculture intends to renew the Advisory Committee on Beginning Farmers and Ranchers for 2 years. Members of the current Committee may be appointed for an additional term of 1 or 2 years; new members will serve for 2 years in remaining roles adhering to the statutory guidelines of representation required.

The Committee advises the Secretary of Agriculture on matters broadly affecting new farmers and ranchers including strategies, policies, and programs that will enhance opportunities and create new farming and ranching operations. The Committee will consider Department goals and objectives necessary to implement prior recommendations. The Committee will develop and recommend an overall framework and strategies to encompass principles that leverage and maximize existing programs, and create and test new program opportunities.

In this notice, we are soliciting nominations from interested organizations and individuals from among ranching and farming producers (industry), related government, State, and Tribal agricultural agencies, academic institutions, commercial banking entities, trade associations, and related nonprofit enterprises. An organization may nominate individuals from within or outside its membership; alternatively, an individual may nominate herself or himself. Nomination packages should include a nomination form along with a cover letter or resume that documents the nominee's background and experience. Nomination forms are available on the Internet athttp://www.ocio.usda.gov/forms/doc/AD-755.pdfor may be obtained from Mrs. R. J. Cabrera at the address or telephone number noted above.

The Secretary will select up to 20 members from among those organizations and individuals solicited, in order to obtain the broadest possible representation on the Committee, in accordance with the FACA and U.S. Department of Agriculture (USDA) Regulation 1041-001. Equal opportunity practices, in line with the USDA policies, will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by the Department, membership should include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the Agency's proposed information collection for the Summer Food Service Program. This collection is a revision of a currently approved information collection.

DATES:

Written comments must be received on or before February 19, 2013.

ADDRESSES:

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the Agency's functions, including whether the information will have practical utility; (2) the accuracy of the Agency's estimate of the proposed information collection burden, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments may be sent to Jon Garcia, Program Analysis and Monitoring Branch, Child Nutrition Division, 3101 Park Center Drive, Alexandria, VA 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go tohttp://www.regulations.gov,and follow the online instructions for submitting comments electronically.

All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will also become a matter of public record.

Title:Information Collection for the Summer Food Service Program (SFSP).

OMB Number:0584-0280.

Form Number:FNS-418.

Expiration Date:February 28, 2013.

Type of Request:Revision of a currently approved collection.

Abstract:SFSP is authorized under section 13 of the Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1761). The SFSP is directed toward children in low-income areas when school is not in session and is operated locally by approved sponsors. Local sponsors may include public or private non-profit school food authorities (SFAs), public or private non-profit residential summer camps, units of local, municipal, county or State governments, or other private non-profit organizations that develop a special summer program and provide meal service similar to that available to children during the school year under the National School Lunch Program (NSLP) and the School Breakfast Program (SBP). Program operators submit monthly claims using FNS-418 to its administering agency to receive reimbursement.

This is a revision of a currently approved collection. It revises reporting burden as a result of program changes and corrections to the recordkeeping burden hours. Current OMB inventory for this collection includes only reporting burden and that consists of 182,683 hours. As a result of program changes and reevaluation of existing program tasks, the reporting burden was significantly reduced by 42,693 hours since last renewal. However, as a result of reinstating the recordkeeping burden, this reduction is estimated at 7,291 hours. No substantive revisions have occurred to the form (FNS-418). The average burden per response and the annual burden hours for reporting and recordkeeping are explained below and summarized in the charts which follow.

Affected Public:State agencies, camps and other sites and households.

Estimated Number of Respondents:106,187.

Estimated Number of Responses per Respondent:6.417593.

Estimated Total Annual Responses:681,465.

Estimate Time per Response:0.257373.

Estimated Total Annual Burden:175,392.

Current OMB Inventory:182,683 (Reporting burden only).

Difference (Burden Revisions Requested):−7,291.

Refer to the table below for estimated total annual burden for each type of respondent.

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other interested parties to comment on a proposed information collection. This collection is an extension, without change, of a currently approved collection. This information collection will conduct research in support of FNS' goal of delivering science-based nutrition education to targeted audiences. From development through testing of materials and tools with the target audience, FNS plans to conduct data collections that involve formative research including focus groups, interviews (dyad, triad, telephone,etc.), surveys and Web-based collection tools.

DATES:

Written comments must be received on or before February 19, 2013.

ADDRESSES:

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments may be sent to Judy F. Wilson, Senior Nutrition Advisor, Foodand Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1012, Alexandria, VA 22302. Comments may also be faxed to the attention of Judy F. Wilson at (703) 305-2576 or emailed tojudy.wilson@fns.usda.gov.Comments will also be accepted through the Federal eRulemaking Portal. Go tohttp://www.regulations.govand follow the online instructions for submitting comments electronically.

All written comments will be open for public inspection at the Office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 1012.

All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will be a matter of public record.

FOR FURTHER INFORMATION CONTACT:

Requests for additional information should be directed to Judy F. Wilson at (703) 305-2017.

SUPPLEMENTARY INFORMATION:

Title:Generic Clearance to Conduct Formative Research for Development of Nutrition Education and Promotion Materials and Related Tools for FNS Population Groups.

Abstract:This information collection is based on Section 19 of the Child Nutrition Act of 1966 (42 U.S.C. 1787), Section 5 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1754) and Section 11(f) of the Food and Nutrition Act of 2008 (7 U.S.C. 2020). This request for approval of information collection is necessary to obtain input into the development of nutrition education interventions for population groups served by the U.S. Department of Agriculture, Food and Nutrition Service (USDA-FNS).

Interventions need to be designed so that they can be delivered through different types of media and in a variety of formats for diverse audiences.

FNS develops a variety of resources to support nutrition education and promotion activities. These resources are designed to convey science-based, behavior-focused nutrition messages about healthy eating and physical activity to children and adults eligible to participate in FNS nutrition assistance programs and to motivate them to consume more healthful foods as defined by the Dietary Guidelines for Americans (DGA). This includes education materials, messages, promotion tools and interventions for the diverse population served by the Federal nutrition programs including WIC, Team Nutrition, Food Distribution and other programs.

Obtaining formative input and feedback is fundamental to FNS' success in delivering science-based nutrition messages and reaching diverse segments of the population in ways that are meaningful and relevant. This includes conferring with the target audience, individuals providing service to the target audience, and key stakeholders on the communication strategies and interventions that will be developed and on the delivery approaches that will be used to reach consumers. The formative research and testing activities described will help in the development of effective education and promotion tools and communication strategies. Collection of this information will increase FNS' ability to formulate nutrition education interventions that resonate with the intended target population, in particular low-income families.

Formative research methods and information collection will include focus groups, interviews (dyad, triad, telephone,etc.), surveys and Web-based data collection. The data obtained will provide input regarding the potential use of materials and products during both the developmental and testing stages. In order to determine future nutrition education needs, tools and dissemination strategies, key informant interviews will be conducted. This task involves collecting a diverse array of information from a variety of groups including: People familiar with the target audiences; individuals delivering nutrition education interventions and projects; program providers at State and local levels; program participants; and other relevant informants associated with FNS programs.

Findings from all data collection will be included in summary reports submitted to USDA-FNS. The reports will describe the data collection methods, findings, conclusions, implications, and recommendations for the development and effective dissemination of nutrition education materials and related tools for FNS population groups. There will be no specific quantitative analysis of data. No attempt will be made to generalize the findings to be nationally representative or statistically valid.

Reporting Burden

Affected Public:State, Local and Tribal Government; Individual/Households; and Business or Other for Profit.

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this existing information collection. This collection is a renewal of a currently approved collection for reporting school programs data on a monthly basis for the National School Lunch Program, the School Breakfast Program, and the Special Milk Program.

DATES:

Written comments must be received on or before February 19, 2013.

ADDRESSES:

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments may be sent to Jon Garcia, Acting Branch Chief, Program Analysis and Monitoring Branch, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 640, Alexandria, VA 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go tohttp://www.regulations.gov,and follow the online instructions for submitting comments electronically.

All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.

All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

FOR FURTHER INFORMATION CONTACT:

Requests for additional information or copies of this information collection should be directed to Jon Garcia at (703) 305-2600.

SUPPLEMENTARY INFORMATION:

Title:7 CFR Part 210 National School Lunch Program, Part 220 School Breakfast Program, and Part 215 Special Milk Program.

Form Number:FNS-806-A and FNS-806-B.

OMB Number:0584-0284.

Expiration Date:03/31/2013.

Type of Request:Revision of a currently approved collection.

Abstract:The National School Lunch Program (NSLP) and School Breakfast Program (SBP), and School Milk Program (SMP) Claim for Reimbursement, Forms FNS-806-A and FNS-806-B, respectively, are used to collect meal and milk data from school food authorities whose participation in these programs are administered directly by the Food and Nutrition Service (FNS) Regional Offices (Regional Office Administered Programs, or ROAP). The FNS Regional Office directly administers the NSLP, SMP, and/or SBP programs in Virginia, Georgia, and Colorado. In order to determine the amount of reimbursement for meals and milk served, the school food authorities are required to complete these forms. The completed forms are either sent to the Child Nutrition Payments Center at the FNS Mid-Atlantic Regional Office where they are entered into a computerized payment system or submitted electronically via the Internet directly into the Child Nutrition Payments Center. The payment system computes earned reimbursement. Earned reimbursement in the NSLP, SBP and SMP is based on performance that is measured as an assigned rate per meal or half pint of milk served. To fulfill the earned reimbursement requirements set forth in NSLP, SBP and SMP regulations issued by the Secretary of Agriculture (7 CFR 210.8 and 220.11; and 215.10), the meal and milk data must be collected on Forms FNS-806-A and FNS-806-B, respectively. These forms are an intrinsic part of the accounting system currently being used by the subject programs to ensure proper reimbursement. The burden hours have decreased from the previously approved burden (1,398) due to a reduction in the number of respondents, School Food Authorities, from 233 to 210.

Affected Public:State and local governments participating in the NSLP, SBP, and SMP under the auspices of the FNS ROAP.

Estimated Number of Respondents:210 School Food Authorities.

Estimated Number of Responses per Respondent:12 (Each State agency will submit a 30-day report.)

Estimated Total Annual Responses:2,520.

Reporting Time per Response:.5 hours.

Estimated Annual Reporting Burden:1,260 hours.

See the table below for estimated total annual burden for each type of respondent.

In accordance with the Paperwork Reduction Act of 1995, this Notice invites the general public and other public agencies to comment on proposed information collections. This Notice of Proposed Information Collection announces the intent of the Food and Nutrition Service to revise and extend the information collection requirements associated with initiating and conducting Federal collection actions against households with delinquent Supplemental Nutrition Assistance Program (SNAP) recipient debts.

DATES:

Written comments must be submitted on or before February 19, 2013 to be assured consideration.

ADDRESSES:

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate, automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Abstract:Section 13(b) of the Food Stamp Act of 1977, as amended (7 U.S.C. 2022(b)), and Supplemental Nutrition Assistance Program (SNAP) regulations at 7 CFR 273.18 require State agencies to refer delinquent debtors for SNAP benefit over-issuance to the U.S. Department of the Treasury for collection. The Debt Collection Improvement Act of 1996, 31 U.S.C. 3701,et seq.,requires these debts to be referred to Treasury for collection when they are 180 days or more delinquent. Through the Treasury Offset Program (TOP), 31 CFR part 285, payments such as Federal income tax refunds, Federal salaries and other Federal payments payable to these delinquent debtors will be offset and the amount applied to the delinquent debt. TOP places a burden on States agencies and/or former SNAP recipients who owe delinquent debts in three areas: 60-day notices from State agencies to debtors that their debt will be referred to TOP; State-level submissions; and automated data processing (ADP).

TOP 60-Day Notice Burden

The burden associated with the information collection involves both the debtors and the State agencies. The TOP 60-day notice notifies the debtor of the proposed referral to TOP and provides the right for review and appeal. The State agency prepares and mails the notices as well as responds to inquiries and appeals. The debtor, in turn, receives and reads the notice and may make an inquiry or appeal the impending action. Based on an average of the number of records for claims the States sent to TOP for calendar years 2009, 2010 and 2011, we estimate that State agencies will produce and send and that debtors will read 240,901 60-day notices. We estimate that the debtors will submit and State agencies will respond to about 16,863 phone and informal inquiries. Debtors will file and the States will respond to an estimated 1,445 appeals each. An additional 3,000 notices will be sent directly from FNS to Federal employees concerning the potential offset of their Federal salary. Historically, 30% of these notices will result in a phone inquiry from a debtor; and approximately 20 will result in a formal appeal to FNS requiring documentation from the State. Thus, the total number of responses for the 60-day notice and debtor inquiry is 522,358 responses (263,129 household responses + 259,229 State Agency responses) per year resulting in an annual reporting burden of 34,510.28 hours. The existing burden for activity relating to the 60-day notice is 36,313.83 hours. The net decrease of 1,803.55 hours is due to a decrease in the number of 60-day notices sent to debtors by State agencies.

TOP State-Level Submissions

Treasury prescribes specific processes and file formats for FNS to use to send debts to TOP. FNS provides guidance and file formats to State agencies and monitors their compliance with such. State agencies must submit specified documents and/or information to FNS and FNS sends required information to Treasury. The first document is an annual letter to FNS certifying that all of the debts submitted in the past and all debts to be submitted in the upcoming calendar year by the State agency to TOP are valid and legally enforceable in the amount stated. Secondly, State agencies report TOP collections on the FNS-209Status of Claims Against Householdsreport. (The burden for the remainder of the FNS-209 report is already covered under OMB burden number 0584-0069.) FNS estimates that it will take State agencies a total of 26.5 hours per year for these State submissions. This burden has not changed.

TOP ADP Burden

The burden for ADP includes weekly file processing, monthly address requests and system maintenance. Weekly and monthly file processing includes requesting addresses to use to send out 60-day notices, adding and maintaining debts in TOP, correcting errors on unprocessable records, and posting weekly collection files. Much of this activity is completed using automation and involves an estimated 1.4 million records annually. FNS estimates that this activity takes12,374.82 annual reporting and 689 recordkeeping burden hours. This burden has not changed.

Summary of Estimated Burden

The net aggregate change from the existing to the revised annual burden for this entire Information Collection is a decrease of 1,803.55 hours from the previous submission. For the activity relating to the 60-day notice, we are decreasing the estimated annual burden for State agencies and debtors from 36,313.83 hours to 34,510.28 hours to reflect a decrease in the number of notices and the resulting inquiries and appeals. The State-level submissions portion of the reporting and recordkeeping burden is estimated to require the same number of hours as the currently approved collection, 26.5 hours. The annual ADP portion of this burden package is also estimated to require the same number of hours as the currently approved collection, 12,375 reporting and 689 recordkeeping hours. This results in a final total of 47,600.6 annual burden hours.

Affected Public:State and local government, and former SNAP households

Pursuant to the Federal Advisory Committee Act, the Food Safety and Inspection Service (FSIS) is announcing a meeting of the National Advisory Committee on Meat and Poultry Inspection (NACMPI). The Committee is being convened to review two topics for FSIS. The first is strengthening Agency verification activities and guidance concerning sanitary dressing and antimicrobial interventions at veal slaughter operations. FSIS test results show that the percent positive for Shiga toxin-producingEscherichia coli(STEC) from trimmings and ground beef produced from veal are higher than trimmings and ground beef produced from other cattle slaughter classes. FSIS is seeking feedback from NACMPI on improvements FSIS can make to its verification activities related to sanitary dressing and interventions at veal slaughter establishments and improvements it can make to its compliance guidance to address veal slaughter operations.

FSIS is also seeking feedback from NACMPI on the ideal outreach strategy for communicating with the veal industry.

The second topic is a review of criteria for categorizing FSIS regulations as public health regulations. FSIS has revised its criteria for identifying regulations that are most closely related to public health outcomes. FSIS is seeking input from NACMPI on the criteria and feedback on the proposed approach.

DATES:

The meeting is scheduled for January 16-17, 2013 from 9:00 a.m. to 5:00 p.m. Eastern Time. The committee will meet from 8:00 a.m. to 9:00 a.m. on January 16 for administrative purposes; this portion of the meeting is not open to the public.

ADDRESSES:

The meetings will be held in the Auditorium at the Patriot Plaza III building, 355 E. Street SW., Washington, DC 20024. The auditorium is located on the first floor. Please note that due to increased security measures at the Patriot Plaza III, all persons wishing to attend are strongly encouraged to RSVP in advance.

FOR FURTHER INFORMATION CONTACT:

General information about the committee can also be found athttp://www.fsis.usda.gov/About_FSIS/NACMPI/index.asp.Sally Fernandez, Program Specialist, Designated Federal Officer, atSally.Fernandez@fsis.usda.govor 202-690-6524 (Phone), or (202) 690-6519 (Fax), may be contacted for specific questions about the committee or this meeting.

SUPPLEMENTARY INFORMATION:

Background

The purpose of the Committee is to provide advice to the Secretary of Agriculture concerning State and Federal programs with respect to meat, poultry, and processed egg products, inspection, safety, and other matters that fall within the scope of the Federal Meat Inspection Act and the Poultry Products Inspection Act. The Administrator of FSIS is the chairperson of the Committee. Membership of the Committee is drawn from representatives of consumer groups; producers; processors; and marketers from the meat, poultry and egg product industries; State and local government officials; and academia. The current members of the NACMPI are: Patricia K. Buck, Center for Foodborne Illness Research and Prevention; Dr. Fur-Chi Chen, Tennessee State University; Nancy J. Donley, STOP Foodborne Illness; Veneranda Gapud, Fieldale Farms Corporation; Sherika Harvey, Mississippi Department of Agriculture and Commerce; Dr. Heidi Kassenborg, Minnesota Department of Agriculture; Sarah A. Klein, Center for Science in the Public Interest; Dr. Carol L. Lorenzen, Missouri State University; Dr. John A. Marcy, University of Arkansas; Robert G. Reinhard, Sara Lee Corporation; Dr. Michael L. Rybolt, Hillshire Farms; Dr. Craig E. Shultz, Pennsylvania Department of Agriculture; Dr. John D. Tilden, Michigan Department of Agriculture and Rural Development; Steve E. Warshawer, Mesa Top Farm; Dr. J. Byron Williams, Mississippi State University; Christopher A. Waldrop, Consumer Federation of America; and Leonard W. Winchester, Public Health—Seattle & King County.

Register for the Meeting:The public is asked to pre-register for the meeting. Your pre-registration must state: The names of each person in your group; organization or interest represented; the number of people planning to give oral comments, if any; and whether anyone in your group requires special accommodations. Submit registrations to (we have to get a mailbox address). FSIS will also accept walk-in registrations. Members of the public requesting to give oral comment to the Committee must sign in at the registration desk.

Public Comments:Written public comments may be mailed to USDA/FSIS, 1400 Independence Avenue SW., Mail Stop 3778, Washington, DC 20250 or submitted via fax (202) 690-6519 or by emailNACMPI@fsis.usda.gov.All written comments must arrive by January 12, 2013. Oral comments are also accepted. To request to give oral comments, see instructions under `Register for the Meeting' above.

Availability of Materials for the Meeting:All written public comments will be compiled into a binder and available for review at the meeting. Duplicate comments from multiple individuals will appear as one comment, with a notation that multiplecopies of the comment were received. Please visithttp://www.fsis.usda.gov/About_FSIS/NACMPI/index.aspto learn more about the agenda for or reports resulting from this meeting.

Meeting Accommodations:USDA is committed to ensuring that all interested persons are included in our events. If you are a person with a disability and request reasonable accommodations to participate in this meeting, please contact Sally Fernandez, Phone (202) 690-6524, Fax (202) 690-6519 or emailSally.Fernandez@fsis.usda.gov.All reasonable accommodation requests are managed on a case-by-case basis.

Additional Public Notification

FSIS will announce this notice online through the FSIS Web page located athttp://www.fsis.usda.gov/regulations_&_policies/Federal_Register_Notices/index.asp.

FSIS will also make copies of thisFederal Registerpublication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,Federal Registernotices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. In addition, FSIS offers an electronic mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available athttp://www.fsis.usda.gov/News_&_Events/Email_Subscription/.Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

USDA Nondiscrimination Statement

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape.) should contact USDA's Target Center at 202-720-2600 (voice and TTY).

To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.

Notice of intent to prepare a supplemental environmental impact statement.

SUMMARY:

In June of 2003, the Dakota Prairie Grasslands Record of Decision for Oil and Gas Leasing on the Little Missouri and Cedar River National Grasslands was signed. This decision spelled out leasing stipulations, consistent with the Revised Dakota Prairie Grasslands Land and Resource Management Plan, based on the 2001 Northern Great Plains Management Plans Revision FEIS which included a Reasonably Foreseeable Development Scenario (RFDS) for Oil and Gas for the Little Missouri and Cedar River National Grasslands.

In the 11 years since the analysis was completed there has been a change in the manner in which oil and gas development has occurred on the Dakota Prairie Grasslands, primarily that multiple (4-6) wells can be drilled from a single well pad rather than just one; as was most common in the past. The improvements in horizontal drilling and hydraulic fracturing technologies to improve the ability to access oil and gas located deep underground are the primary reasons for these changes in development.

At this time it is necessary to review the analysis to determine whether or not the effects of the changed pattern of oil and gas development are different from those effects considered in the 2001 FEIS, and whether or not there is a need to change Land and Resource Management Plan standards and guidelines (and possibly leasing stipulations) in order to continue oil and gas development on the Little Missouri and Cedar River National Grassland units of the Dakota Prairie Grasslands.

DATES:

Scoping is not required for supplements to environmental impact statements (40 CFR 1502.9(c)(4)). Review and comments will be solicited once the Draft SEIS is filed with EPA. The draft supplemental environmental impact statement is expected in February, 2013 and the final supplemental environmental impact statement is expected in May, 2013.

Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:Purpose and Need for Action

In light of a changed pattern of oil and gas activity from what was anticipated in the 2001 RFDS, there is a need for the DPG to supplement our analysis to determine if any changes need to be made to the stipulations in the 2003 Oil and Gas Leasing ROD that authorizes oil and gas leasing on the DPG. The purpose of the analysis is to determine whether or not the effects anticipated in the 2001 FEIS are still accurate and, if they are not, whether or not any additional management direction and/or leasing stipulations are necessary to protect National Forest System lands while still allowing for oil and gas development on the DPG on those lands previously determined to be administratively available for leasing.

Proposed Action

The Dakota Prairie Grasslands has conducted preliminary analysis of the changed condition and, at this time, proposes no change to management direction in the LRMP or to leasing stipulations from the 2003 ROD. However, consistent with 40 CFR 1502.9(2), we will supplement the FEIS to consider the changed pattern of oil and gas development relative to the updated RFDS. The updated RFDS is available by request at the address below or online at:http://www.fs.fed.us/nepa/fs-usda-pop.php/?project=40652.

The purpose of the Board is to provide advice and recommendations on a broad range of forest issues such as forest plan revisions or amendments, forest health including fire and mountain pine beetle epidemics, travel management, forest monitoring and evaluation, recreation fees, and site-specific projects having forest-wide implications.

The meeting is open to the public. The purpose of the meeting is: (1) To accomplish the required annual Ethics Training; (2) to provide an update on the Sheridan Lake Valve Situation; (3) to provide an update on the Record of Decision for the Mountain Pine Beetle Response Project; and (4) to review Travel Management Plan Goals and Implementation for the purpose of planning fee schedules and program for the year 2014.

DATES:

The meeting will be held January 2, 2013 at 1:00 p.m.

ADDRESSES:

The meeting will be held at the Forest Service Mystic Ranger District Office, 8221 South Highway 16, Rapid City, SD 57702. Written comments may be submitted as described underSUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Supervisor's Office, Black Hills National Forest, 1019 North Fifth Street, Custer SD 57730. Please call ahead to Scott Jacobson, Committee Management Officer, at 605-673-9216, to facilitate entry into the building to view comments.

FOR FURTHER INFORMATION CONTACT:

Scott Jacobson, Committee Management Officer, Black Hills National Forest Supervisor's Office, 605-673-9324,sjjacobson@fs.fed.us.Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

The following business will be conducted: (1) Annual Ethics Training; (2) update on the Sheridan Lake Valve Situation; (3) update on the Record of Decision for the Mountain Pine Beetle Response Project; and (4) review of Travel Management Plan Goals and Implementation for the purpose of planning fee schedules and program for the year 2014. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by December 26, 2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Scott Jacobson, Supervisor's Office, Black Hills National Forest, 1019 North Fifth Street, Custer SD 57730, or by email tosjjacobson@fs.fed.us,or via facsimile to 605-673-9208. A summary of the meeting will be posted athttp://www.fs.usda.gov/main/blackhills/workingtogether/advisorycommitteeswithin 45 days of the meeting.

Meeting Accommodations:If you require sign language interpreting, assistive listening devices or other reasonable accommodation please request this in advance of the meeting by contacting the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Generic Clearance for Survey Research Studies. Revision to burden hours will be needed due to changes in the size of the target population, sampling design, and/or questionnaire length.

DATES:

Comments on this notice must be received by February 19, 2013 to be assured of consideration.

ADDRESSES:

You may submit comments, identified by docket number 0535-0248, by any of the following methods:

•Email:ombofficer@nass.usda.gov.Include docket number above in the subject line of the message.

Type of Request:To revise and extend a currently approved information collection for a period of three years.

Abstract: The National Agricultural Statistics Service (NASS) of the United States Department of Agriculture (USDA) will request approval from the Office of Management and Budget (OMB) for generic clearance that will allow NASS to rigorously develop, test, and evaluate its survey instruments and methodologies. The primary objectives of the National Agricultural Statistics Service are to prepare and issue State and national estimates of crop production, livestock production, economic statistics, and environmental statistics related to agriculture and to conduct the Census of Agriculture. This request is part of an on-going initiative to improve NASS surveys, as recommended by both its own guidelines and those of OMB.

In the last decade, state-of-the art techniques have been increasingly instituted by NASS and other Federal agencies and are now routinely used to improve the quality and timeliness of survey data and analyses, while simultaneously reducing respondents' cognitive workload and burden. The purpose of this generic clearance is to allow NASS to continue to adopt and use these state-of-the-art techniques to improve its current data collections on agriculture. They will also be used to aid in the development of new surveys.

NASS envisions using a variety of survey improvement techniques, as appropriate to the individual project under investigation. These include focus groups, cognitive and usability laboratory and field techniques, exploratory interviews, behavior coding, respondent debriefing, pilot surveys, and split-panel tests.

Following standard OMB requirements NASS will submit a change request to OMB individually for each survey improvement project it undertakes under this generic clearance and provide OMB with a copy of the questionnaire (if one is used), and all other materials describing the project.

These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and Office of Management and Budget regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995). NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),”Federal Register,Vol. 72, No. 115, June 15, 2007, p. 33362.

Estimate of Burden:Public reporting burden for these collections of information is estimated to average from 15 minutes to 1.5 hours per respondent, dependant upon the survey and the technique used to test for that particular survey.

Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS Clearance Officer, at (202) 690-2388.

Comments:Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, through the use of appropriate automated, electronic, mechanical, technological or other forms of information technology collection methods.

All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.

USDA Rural Development, which administers the programs of the Rural Housing Service (RHS or Agency), announces the availability of up to $19.9 million in program dollars, and the timeframe to submit applications to participate in a demonstration program to preserve and revitalize existing rural rental housing projects under Section 515, Section 514, and Section 516 of the Housing Act of 1949, as amended. Under the demonstration program existing Section 515 Multi-Family Housing (MFH) loans and Section 514/516 Off-Farm Labor Housing loans will be restructured to ensure that sufficient resources are available to preserve the ability of rental projects to provide safe and affordable housing for very low-, low- or moderate-income residents. Projects participating in this program will be expected to be revitalized to extend their affordable use without displacing tenants because of increased rents. No additional Agency Rental Assistance (RA) units will be made available under this program.

DATES:

Pre-applications in response to this Notice will be accepted until February 28, 2013, 5:00 p.m., Eastern Time. The pre-application closing deadline is firm as to date and hour. The Agency will not consider any pre-application that is received after the closing deadline. Applicants intending to mail pre-applications must allow sufficient time to permit delivery on or before the closing deadline. Acceptance by a post office or private mailer does not constitute delivery. Facsimile (FAX) and postage-due pre-applications will not be accepted.

DATES:Pre-applications in response to this Notice will be accepted until February 28, 2013, 5:00 p.m., Eastern Time. The pre-application closing deadline is firm as to date and hour. The Agency will not consider any pre-application that is received after the closing deadline. Applicants intending to mail pre-applications must allow sufficient time to permit delivery on or before the closing deadline. Acceptance by a post office or private mailer does not constitute delivery. Facsimile (FAX) and postage-due pre-applications will not be accepted.

I. Funding Opportunities Description

The Consolidated and Further Continuing Appropriations Act, 2012 (Pub. L. 112-55) (November 18, 2011) authorized the Agency to conduct a demonstration program for the preservation and revitalization of the Section 515 MFH portfolio and Section 514/516 Off-Farm Labor Housing (FLH) portfolio. Sections 514, 515 and 516 MFH programs are authorized by the Housing Act of 1949, as amended (42 U.S.C. 1484, 1485, 1486) and provide Rural Development with the authority to provide financial assistance for low-income MFH and FLH and related facilities as defined in 7 CFR Part 3560.

This Notice solicits pre-applications from eligible borrowers/applicants to restructure existing MFH projects already participating in the Agency's Section 515 MFH portfolio and Section 514/516 FLH portfolio for the purpose of revitalization and preservation. Eligible borrowers are sometimes referred to in this Notice as “applicants,” “borrowers,” “applicant/borrowers,” or “owners” as seems most appropriate for the context of the relevant Notice provision. The demonstration program shall be referred to in this Notice as the Multi-Family Housing Preservation and Revitalization Demonstration program (MPR). Agency regulations for the Section 515 MFH program and the Section 514/516 FLH program are published at 7 CFR part 3560.

The intent of the MPR is to ensure that existing rental projects will continue to deliver decent, safe and sanitary affordable rental housing for 20 years or the remaining term of any Agency loan, whichever ends later. Applications will be selected by the Agency in the process described in this Notice and the selected applicants will be invited to participate in the MPR demonstration program. Upon written notification to the Agency from the selected applicant of acceptance to participate, an independent third-party capital needs assessment (CNA) will be conducted to provide a fair and objective review of projected capital needs. The Agency shall implement the restructuring proposal that may be offered under this Notice through an MPR Conditional Commitment (MPRCC) with the eligible borrower/applicant which will include all the terms and conditions offered by the Agency.

One of the restructuring tools to be used in this program is debt deferral for up to 20 years of the existing Section 514 or 515 loans obligated prior to October 1, 1991. The cash flow from the deferred payment will be deposited, as directed by the Agency, to the reserve account to help meet the future physical needs of the project or to reduce rents. Debt deferral is described as follows:

MPR Debt Deferral:A deferral of the existing Section 514 or 515 Agency loan(s), obligated on or before 9/30/1991, for the lesser of the remaining term of the existing 514 or 515 loan or 20 years. All terms and conditions of the deferral will be described in the MPR Debt Deferral Agreement. A balloon payment of principal and accrued interest will be due at the end of the deferral period. Interest will accrue at the promissory note rate and subsidy will be applied as set out in the Agency's Interest Credit and Rental Assistance Agreement, if applicable.

Other Agency MPR tools are as follows:

1.MPR Grant:A grant limited to non-profit applicants/borrowers only. The grant will be limited to the cost of correcting health and safety violations or other physical needs of the project identified by the CNA and accepted by the Agency. The grant administration will be in accordance with applicable provisions of 7 CFR parts 3015 and 3019.

2.MPR Zero Percent Loan:A loan with zero percent interest.

(a) For Section 515 Rural Rental Housing projects, the maximum term will be 30 years and be amortized over 50 years.

(b) For Section 514/516 projects, the loan will be amortized over a maximum term of 33 years.

3.MPR Soft-Second Loan:A loan with a one percent interest rate that will have its accrued interest and principal deferred, to a balloon payment. The balloon payment will be due at the same time the latest maturing Section 514 or Section 515 loan already in place at the time of closing or the maturity date of any current loan being re-amortized as part of the restructuring is due. The term of the soft second loan will not be timed to match the term of any new Section 514 or 515 loan added during the transaction.

4.Increased Return to Owner (RTO) for Stay-in-Owners:Section 515 stay-in-owners, who will retain their project and contribute cash, other than proceeds from the sale of Low Income Housing Tax Credits, to fund any hard costs of construction to meet immediate needs identified by the CNA, may receive a Return on Investment (ROI) on those funds provided the Agency determines an increased ROI is financially feasible, and the Agency approves such a return in the revitalization plan. The Agency may also offer that the RTO be included in a “cash flow split” agreement as outlined in a MPRCC. The cash flow split, if approved, will allow up to 50 percent of excess cash, generated at the end of the owner's fiscal year end, to be splitequallybetween paying down any outstanding deferred Agency loan balances and 50 percent to be returned to the borrower as an increased RTO, subject to the provisions of 7 CFR 3560.68.

MPR funds cannot be used to build community rooms, playgrounds, laundry rooms or additional new units, unless the additional unit(s) are needed for the project to meet the 5 percent fully accessible requirement as defined by Uniform Federal Accessibility Standards (UFAS) and the Agency concurs. However, other funding sources as outlined below in (i) through (vi) can be used either for revitalization or for the improvements listed above.

vi. Owner-provided capital contributions in the form of a cash infusion. A cash infusion cannot be a loan.

Transfers, subordinations, and consolidations may be approved as part of a MPR transaction in accordance with 7 CFR Part 3560. If a transfer is part of the MPR transaction, the transfer must first meet the requirements of 7 CFR 3560.406 before the MPR transaction is processed.

For the purposes of the MPR, the restructuring transactions will be identified in three categories:

1. “Simple transactions” involve no change in ownership.

2. “Complex transactions” may consist of a project transfer to a new ownership, processed in accordance with 7 CFR 3560.406, with or without a consolidation, or transactions requiring a subordination agreement as a result of third-party funds. The applicant will submit one pre-application form. If a consolidation is proposed, all projects to be consolidated will be listed on one pre-application form. To be a complex transaction, at the MPR closing, the Agency assumes only one project remains upon completion.

3. A “Portfolio transaction” includes two or more projects with one stay-in owner, or two or more projects with multiple project sale transactions to a common purchaser all located in one State. Each project included in the transaction will be submitted on a separate pre-application form unless some projects are being consolidated in which case those projects being consolidated will be listed on the same pre-application form. Each pre-application must have the same Portfolio name. If the owner chooses to remove one or more projects from the proposal, at least two projects must remain in order to be classified as a portfolio transaction. At the end of the transaction, it is assumed there will be two or more projects remaining. The stay-in owner or common purchaser must have at least one general partner in common.

A transaction within each category may utilize any or all restructuring tools. Restructuring tools that may be available to address the capital needs of a project must be used to address preservation and rehabilitation items identified in the CNA.

The liens against the project, with the exception of Agency deferred debt, cannot exceed Agency approved value of the project. All Agency debt, either in first lien position or a subordinated lien position, must be secured by the project, except deferred debt which is not included in the Agency's total lien position for computation of adequate security. Payment of such deferred debt will not be required from normal project operations income, but from excess cash from project operations after all other secured debts are satisfied or as directed by the Agency.

The general steps of the MPR application process are as follows:

1.Pre-application:Applicants must submit a pre-application described in Section VI. This pre-application process is designed to lessen the cost burden on all applicants including those who may not be eligible or whose proposals may not be feasible.

Note:

If you receive a loan or grant award under this Notice, USDA reserves the right to post all information submitted as part of the pre-application/application package which is not protected under the Privacy Act on a public Web site with free and open access to any member of the public.

2.Eligible Projects:Using criteria described below in Section III, the Agency will conduct an initial screening for eligibility. As described in Section VIII, the Agency will conduct an additional eligibility screening later in the selection process.

3.Scoring and Ranking:All complete, eligible and timely-filed pre-applications will be scored, ranked and put in potential funding categories as discussed in Sections VI and VII.

4.Formal Applications:Top ranked pre-applicants will receive a letter from the Agency inviting them to submit a formal application. As discussed in Section VIII paragraph (2) of this Notice, the Agency will require the owner to provide a CNA completed in accordance with the Agency's published guidance, (available athttp://www.rurdev.usda.gov/HMF_MPR.html) in order to underwrite the proposal to determine financial feasibility and to determine the proper combination of tools to be offered to the applicant. When proposals are found to be ineligible or financially infeasible applicants will be informed of this ineligibility or financial infeasibility. Any proposal denied by the Agency will be returned to the applicant and the applicant will be given appeal rights pursuant to 7 CFR part 11.

5.Financial Feasibility:Using the results of the CNA to help identify the need for resources and applicant provided information regarding anticipated or available third-party financing, the Agency will determine the financial feasibility of each potential transaction, using restructuring tools available either through existing regulatory authorities or specifically authorized through this demonstration program. A project is financially feasible when it can provide affordable, decent, safe, and sanitary housing for 20 years or the remaining term of any Agency loan, whichever ends later, by using the authorities of this program while minimizing the cost to the Agency, and without increasing rents for eligible tenants or farm laborers, except when necessary to meet normal and necessary operating expenses. If the transaction is determined financially feasible by the Agency, the borrower will be offered a restructuring proposal, if funding is available. This will include a requirement that the borrower will execute, for recordation, an Agency approved restrictive use covenant for a period of 20 years, the remaining term of any loans, or the remaining term of any existing restrictive-use provisions, whichever ends later. The restructuring proposal will be established in the form of the MPRCC.

6.MPR Agreements:If the offer is accepted by the applicant, the applicant must accept the MPRCC. By accepting the offer, the applicant must also agree to restrict the project pursuant to the MPRCC. Any third-party lender will be required to subordinate to the Agency's restrictive use covenant unless the Agency determines, on a case-by-case basis, that the lender's refusal to subordinate will not compromise the purpose of the MPR. As part of the MPRCC, the Agency may require the applicant to sign an Agency approved agreement that requires the owner to escrow reserve, tax, and insurance payments in accordance with all pertinent current and future Agency regulations not otherwise inconsistent with this Notice. In addition, the MPRCC may also require the applicant to accept future rent increases based on an Annual Adjustment Factor (AAF) determined by the Secretary. The AAF allows rents to be adjusted by the annual inflation factor as determined by the United States Office of Management and Budget. The exact AAF will be established in the MPRCC.

7.General Requirements:The MPR transactions may be conducted with a stay-in owner (simple) or may involve a change in ownership (complex or portfolio). Any housing or related facilities that are constructed or repaired must meet the Agency design and construction standards and the development standards contained in 7 CFR part 1924, subparts A and C, respectively. Once constructed, Section 515 MFH and Section 514/516 FLH projects must be managed in accordance with 7 CFR part 3560. Tenant eligibility will be limited to persons who qualify as an eligible household under Agency regulations. Tenant eligibility requirements are contained in 7 CFR 3560.152.

8.Voluntary “Community Market Rent” Demonstration (available for Section 515 projects only):In conjunction with this demonstration, the Agency also announces the opportunity for all successful Section 515 applicants to participate on a voluntary basis in a viability test of a 30 percent limitation on tenant rents, as proposed in Section 544 (b)(7) of Saving American's Rural Housing Act of 2006, H.R. 5069, for post-restructured properties. Owners of projects in the Section 515 MPR program may elect to participate in the “community market rent” demonstration which will allow an owner to set a rent above the approved basic rent for any unit not currently occupied by a tenant receiving Agency RA. Eligible tenants for these units must have adjusted annual incomes sufficient to allow them to pay the community market rent using less than 30 percent of their adjusted income. With the Agency's consent, up to 50 percent of the difference between the basic rent and the new “community market rent” could be retained by the owner as an increased return.

For example, if the basic rent is $350, the owner could create a community market rent at $410, and market the unit to tenants who could pay the $410 rent at less than 30 percent of adjusted income. A percentage of the $60 difference could be retained by the owner, as negotiated with the Agency, up to $30.

Prior to implementation of the community market rent demonstrations, the Agency will issue guidance to successful applicants who have indicated an interest in participating in the demonstration providing further details with respect to the program.

II. Award Information

The Consolidated and Further Continuing Appropriations Act, 2012 (Pub. L. 112-55), November 18, 2011, appropriated $2,000,000 in budget authority to operate the MPR Demonstration Program. The budget authority is anticipated to make approximately $19.9 million available in program funds depending on the funding tools used. This funding remains available until expended.

All Agency funding of applications submitted under this Notice must be approved no later than September 30, 2013. Applicants are alerted that the Agency has unfunded applications carried over from prior Notices that will receive priority based on that Notice. If funds available for the MPR are fully committed before all eligible pre-applications selected for further processing are funded, the Agency shall suspend further processing of the pre-applications at that time. If additional funding is received during 2013, processing will continue. Any pre-applications or applications that have not been approved by September 30, 2013, will be considered (based on scoring under the prior applicable Notice) with any pre-applications received under any future Notice unless the application is withdrawn. Any pre-applications selected under this Notice, or prior Notices, that are not approved by the Agency prior to September 30, 2014, will be considered withdrawn automatically. However, the applicants may reapply for funding under future Notices.

III. Eligibility Information

Applicants (and the principals associated with each applicant) must meet the following requirements:

1. Eligibility under applicable provisions of 7 CFR 3560.55 and 3560.555; however, the requirements described in 7 CFR 3560.55(a)(5) pertaining to required borrower contributions and paragraph (a)(6) pertaining to required contributions of initial operating capital are waived for all MPR proposals. Eligibility consideration also includes the continued ability of the borrower/applicant to provide acceptable management and will include an evaluation of any current outstanding deficiencies. Any outstanding violations, recorded in the Agency's Automated MFH Information System (MFIS), will preclude further processing of any MPR applications associated with the borrower or Identity of Interest (IOI) management agent unless there is a current, approved workout plan in place and the plan is being satisfactorily followed as determined by the Agency.

2. For Section 515 Rural Rental Housing (RRH) projects, the average physical vacancy rate for the 12 months preceding the filing of the pre-application can be no more than 10 percent for projects of 16 units or more and no more than 15 percent for projects less than 16 units unless an exception applies under Section VI paragraph (1)(ii) of this Notice. If a project consolidation is involved, the consolidation will remain eligible so long as the average vacancy rate for all the projects involved meets the occupancy standard noted in this paragraph. Projects that do not meet the occupancy threshold at the time of filing the application may be withdrawn by the owner from the application process without jeopardizing the application.

3. For Section 514/516 FLH projects, rather than an average physical vacancy rate as noted in III(2) above, a positive cash flow for the previous full 3 years of operation is required unless an exception applies under Section VI paragraph (1)(ii) of this Notice.

4. Ownership of and ability to operate the project after the transaction is completed. In the event of a transfer, the proposed transferee, with an executed purchase agreement or other evidence of site control, must apply. Purchase agreements that are not executed or are expired will not be accepted.

5. An Agency approved CNA (for guidance refer tohttp://www.rurdev.usda.gov/HMF_MPR.htmland an Agency financial evaluation must be conducted to ensure that utilization of the restructuring tools of the MPR program is financially feasible and necessary for the revitalization and preservation of the project for affordable housing. Initial eligibility for processing will be determined as of the date of the pre-application filing deadline. The Agency reserves the right to discontinue processing any application due to material changes in the applicant's status occurring at any time after the initial eligibility determination.

6. Please note that all grant eligible applicants must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number and register in the Central Contractor Registration (CCR) prior to submitting a pre-application pursuant to 2 CFR 25.200(b). In addition, an entity applicant must maintain registration in the CCR database at all times during which it has an active Federal award or an application or plan under consideration by the Agency. Similarly, all recipients of Federal Financial Assistance are required to report information about first-tier sub-awards and executive compensation, in accordance with 2 CFR part 17a. So long as an entity applicant does not have an exception under 2 CFR 170.110(b), the applicant must have the necessary processes and systems in place to comply with the reporting requirements should the applicant receive funding. See 2 CFR 170.200(b).

IV. Equal Opportunity and Nondiscrimination Requirements

USDA is an equal opportunity provider, employer, and lender.

1. Borrowers and applicants will comply with the provisions of 7 CFR 3560.2.

2. All housing must meet the accessibility requirements found at 7 CFR 3560.60(d).

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, sex, marital status, familial status, religion, sexual orientation, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (Voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Adjudication and Compliance, 1400 Independence Avenue SW., Washington, DC 20250-9410, or call (800) 795-3272 (Voice) or (202) 720-6382 (TDD).

The policies and regulations contained in 7 CFR Part 1901, Subpart E, apply to this program.

V. Authorities Available for MPR

MPR tools will be used in accordance with 7 CFR part 3560. The program will be administered within the resources available to the Agency through Public Law 112-55 and any future appropriations for the preservation and revitalization of Section 514/516 and Section 515 financed projects. In the event that any provisions of 7 CFR part 3560 conflict with this demonstration program, the provisions of the MPR will take precedence.

VI. Application and Submission Information

1. The application submission and scoring process will be completed in two phases in order to avoid unnecessary effort and expense on the part of borrowers/applicants and to allow additional points for applicants that propose a transfer of a troubled project to an eligible owner.

Phase I—The first phase is the pre-application process. The applicant must submit a complete pre-application by the deadline date under the “DATES” section of this Notice. The applicant's submission will be classified as “complete” when the MPR Pre-application form is received in the correct format and place as described in this Notice for each MPR proposal the applicant wishes to be considered in the demonstration. In the event the MPR proposal involves a project consolidation, it will be completed in accordance with 7 CFR 3560.410. One pre-application for the proposed consolidated project is required and must identify each project included in the consolidation. If the MPR proposal involves a portfolio transaction (sale or stay in owner), one pre-application for each project in the portfolio is required and each pre-application must identify each project included in the portfolio transaction. In addition, a synopsis of this program and the pre-application's universal resource locator (URL) will be listed by Catalog of Federal Domestic Assistance Number or at Federal GrantsWire athttp://www.federalgrantswire.com.

In order for the pre-application to be considered complete, all applicable information requested on the MPR Pre-application form must be provided. Additional information that must be provided with the pre-application, when applicable, includes:

i. A copy of a purchase agreement if a transfer of ownership is proposed.

ii. A market survey for any pre-application project not meeting the occupancy standards cited in Section III (2) and (3) above. The market survey should show there is an overwhelming market demand for the project evidenced by waiting lists and a housing shortage confirmed by local housing agencies and realtors. The market survey must show a clear need and demand for the project once a restructuring transaction is completed. The results of the survey of existing or proposed rental or labor housing, including complex name, location, number of units, bedroom mix, family or elderly type, year built, and rent charges must be provided as well as the existing vacancy rate of all available rental units in the community, their waiting lists and amenities, and the availability of RA or other subsidies. The Agency will determine whether or not the proposal has market feasibility based on the data provided by the applicant. Any costs associated with the completion of the market survey is NOT an eligible program project expense.

Unless an exception under this section applies, the requirements stated in Section III, paragraph (2) and (3) of this Notice must be met.

Note:

All documents must be received on or before the pre-application closing deadline to be considered complete and timely filed. Pre-applications that do not include a Purchase Agreement for transfer proposals or market surveys for projects that do not meet the occupancy standards of Section III paragraphs (2) and (3) of this Notice, will be considered incomplete and will be returned to the applicant with appeal rights.

Phase II—The second phase of the application process will be completed by the Agency based on Agency records and the pre-application information submitted. All complete, eligible, and timely-filed pre-applications will be scored and ranked based on points received during this two-phase application process. Further, the Agency will categorize each MPR proposal as being potentially a Simple, Complex, or a Portfolio transaction based on the information submitted on the pre-application and in accordance with the category description provided in Section I of this Notice.

2. Pre-applications can be submitted either electronically or in hard copy. The Agency will record pre-applications received electronically by the actual date and time received in the MPR Web site mail box. This date may impact ranking of the application as discussed under section VII. For all hard copy pre-applications received, the recorded receipt time will be the close of business time for the day received. Assistance for filing electronic and hard copy pre-applications can be obtained from any Rural Development State Office. A listing of State Offices, their addresses, telephone numbers and person to contact is included under Section X of this Notice.

The pre-application is an Adobe Acrobat format and may be completed as a fillable form. The form contains a button labeled “Submit by Email.” Clicking on the button will result in an email containing a completed pre-application being sent to the MPR Web site mail box for consideration. If a purchase agreement or market survey is required, these additional documents are to be attached to the resulting email prior to submission.

Pre-application forms may be downloaded from the Agency's Web site athttp://www.rurdev.usda.gov/RD_NOFAs.htmlor obtained by contacting the State Office in the State the project is located. Hard copy pre-applications and additional materials can be mailed to the attention of Sherry Engel or Tiffany Tietz, atsherry.engel@wdc.usda.govortiffany.tietz@wdc.uda.gov,at (715) 345-7677 (616) 942-4111, extension 126, Finance and Loan Analyst, Multi-Family Housing Preservation and Direct Loan Division, STOP 0782 (Room 1263-S), U.S. Department of Agriculture, Rural Housing Service, 1400 Independence Avenue SW., Washington, DC 20250-0781. (Please note this telephone number is not a toll-free number.)

VII. Selection for Processing

A. Pre-application ranking points will be based on information provided during the submission process and in Agency records. Only timely, completepre-applications will be ranked. Points will be awarded as follows:

1. Contribution of other sources of funds. Other funds are those discussed in items (i) through (vi) of Section I of this Notice. Points awarded are to be based on documented written evidence that the funds arecommitted.The maximum points awarded for this criterion is 25 points. These points will be awarded in the following manner:

i. Evidence of a commitment of at least $3,000 to $5,000 per unit per project from other sources—15 points, or

ii. Evidence of a commitment greater than $5,000 per unit per project from other sources—20 points.

iii. Evidence of a commitment greater than $5,000 per unit per project from other sources and a binding written commitment by a third-party to contribute 25 percent or more of any allowable developer fee to the hard costs of construction—25 points.

2. Owner contribution. The maximum points awarded for this criterion is 10 points. These points will be awarded in the following manner:

i. Owner contribution sufficient to pay transaction costs. (These funds cannot be from the project's reserve or operating funds.) Transaction costs are defined as those Agency approved costs required to complete the transaction under this Notice and include, but are not limited to, the CNA, legal and closing costs, appraisal costs and filing/recording fees. The minimum contribution required to receive these points is $10,000 per project and must be deposited into the respective project reserve account prior to closing the MPR transaction from the owner's non-project resources. 5 points

ii. Owner contribution for the hard costs of construction. (These funds cannot be from the project's reserve account or project's general operating account or in the form of a loan.) Hard costs of construction are defined as those costs for materials, equipment, property or machinery required to complete the proposal under this Notice. Hard costs must be itemized on Form RD 1924-13, “Estimate and Certificate of Actual Cost.” Form RD 1924-13 which can be found athttp://forms.sc.egov.usda.gov/efcommon/eFileServices/eForms/RD1924-13.PDF.The minimum contribution required to receive these points is $1,000 per unit per project which will be required to be deposited in the project reserve account or a supervised/construction account, as directed by Rural Development, prior to closing. An increased RTO may be budgeted and allowed for funds committed in accordance with 7 CFR 3560.406(d)(14)(ii). 10 points

3. Age of project. For project consolidation (including portfolio transactions) proposals, the project with the earliest operational date (operational date is the date the project initially placed in service and documented in the Agency's Multi-Family Housing Information System (MFIS)) will be used in determining the age of the project. Since the age of the project and the date the project placed in service are directly related to physical needs, a maximum of 25 points will be awarded based on the following criteria:

ii. Projects with initial operational dates on or after December 21, 1979, but before December 15, 1989—20 points.

iii. Projects with initial operational dates on or after December 15, 1989, but before October 1, 1991—15 points.

iv. Projects with initial operational dates on or after October 1, 1991—0 points.

4. Troubled project points. The Agency may award up to 25 points to pre-applications involving projects that have been adversely impacted by an act of nature or where physical and/or financial deterioration or management deficiencies exist. Projects classified “B”, “C” or “D”, as defined below, will be considered troubled and points will be awarded in the following manner:

Class “D” Projects

Class “D” projects are in default and may be taken into inventory, be lost to the program or cause the displacement of tenants. Defaults can be monetary or non-monetary. Projects in non-monetary default are those where the Agency has notified the borrower of a violation using the Agency's three processing letter process and the borrower has not addressed the violation to the Agency's satisfaction.

Class “C” Projects

Class “C” projects are projects with identified findings or violations, which are not associated to a workout plan and/or transition plan. This canincludeprojects with violations where a servicing letter has been issued but 60 days have not passed.

Class “B” Projects

Class “B” projects indicates that the Agency has taken servicing steps and the borrower is cooperating to resolve identified findings or violations by associating a workout plan and/or transition plan.

For Transfer proposals:

i. For projects classified a “C” or “D” for 24 months or more—20 points.

ii. For projects classified as a “C” or “D” for less than 24 months—15 points.

Stay in owner proposals:

i. For projects classified as a “B” as a result of a workout plan and/or transition plan approved by the Agency prior to 1/1/2012—25 points.

ii. Projects with an Agency “C” classification, for 6 months or longer at the time the MPR pre- application is filed, will not be considered eligible to participate in the MPR.

5. Proposed or Closed Sale of 515 projects to Non-Profit/Public Housing Authority. The Agency will award 20 points for projects that have or will be sold to non-profit organizations under the prepayment process as explained in 7 CFR part 3560, Subpart N. To receive points, the borrower/applicant must provide a copy of the executed purchase agreement (if sale is proposed) or a copy of the purchase agreement and filed deed (if sale is already closed to an eligible non-profit or public body)—20 points.

6. Prior approved CNAs. In the interest of ensuring timely application processing and underwriting, the Agency will award up to 20 points for projects with CNAs already approved by the Agency. “Approved” means the initial CNA or an updated CNA was previously reviewed and approved by the Agency. CNAs or updates before October 1, 2010 may not be used for MPR underwriting without an update approved by the Agency. Points will be awarded for:

i. CNAs approved on or after October 1, 2010, but prior to October 1, 2011—10 points.

ii. CNAs approved on or after October 1, 2011, but prior to the publication of this Notice—20 points.

7. Tenant service provision. The Agency will award 5 points for applications that include new services provided by either a for-profit or a non-profit organization, which may include a faith-based organization, or by another Government agency. Such services shall be provided at no cost to the project and shall be made available to all tenants. Examples of such services may include transportation for the elderly, after-school day care services or after-school tutoring.

8. Consolidation of project operations. To encourage post-transaction operational cost savings and management efficiencies, the Agency will award 5 points for pre-applications that include at least two and up to four projects that will consolidate project budget and management operations and 10 points for applicants that include atleast five or more projects that will consolidate project budget and management operations. Consolidations must meet the requirements of 7 CFR 3560.401. (5 or 10 points.)

For portfolio sales and project consolidations, the Agency will calculate the average score for each project within the portfolio or consolidation.

Pre-applications for rehabilitation and preservation of projects may be eligible to receive a maximum of 30 points for the following energy conservation measures.

(a) Participation in the Green Communities program by the Enterprise Community Partners,http://www.enterprisecommunity.com/solutions-and-innovation/enterprise green-communities,or an equivalent Agency approved program will be awarded 30 points for any project that qualifies for the program. At least 30 percent of the points needed to qualify for the Green Communities program must be earned under the Energy Efficiency section of the Green Communities qualification program. Green Communities has an initial checklist indicating prerequisites for participation. Each applicant must provide a checklist establishing that the prerequisites for each program's participation will be met. Additional points will be awarded for checklists that achieve higher levels of energy efficiency certification as set forth below. All checklists must be accompanied by a signed affidavit by the project architect or engineer stating that the goals are achievable.

(b) If you are not enrolling in the Green Communities program, then points can be accumulated for each of the following items up to a total of 20 points. Provide documentation to substantiate your answers below:

i. This proposal includes the replacement of heating, ventilation and air conditioning (HVAC) equipment with Energy Star qualified heating, ventilation and air conditioning equipment. 3 points.

ii. This proposal includes the replacement of windows and doors with Energy Star qualified windows and doors. 3 points.

iii. This proposal includes additional attic and wall insulation that exceeds the required R-Value of these building elements for your areas as per the International Energy Conservation Code 2009. Two points will be awarded if all exterior walls exceed insulation code, and 1 point will be awarded if attic insulation exceeds code for a maximum of 3 points.

iv. This proposal includes the reduction in building shell air leakage by at least 15 percent as determined by pre- and post-rehab blower door testing on a sample of units. Building shell air leakage may be reduced through materials such as caulk, spray foam, gaskets and house-wrap. Sealing of duct work with mastic, foil-backed tape, or aerosolized duct sealants can also help reduce air leakage. 3 points.

v. This proposal includes 100 percent of installed appliances and exhaust fans that are Energy Star qualified. 2 points

vi. This proposal includes 100 percent of installed water heaters that are Energy Star qualified. 2 points.

vii. This proposal included replacement of 100 percent of toilets with flush capacity of more than 1.6 gallon flush capacity with new toilets having 1.6 gallon flush capacity or less, and with Environment Protection Agency (EPA) Water Sense label. 1 point.

viii. This proposal includes 100 percent of new showerheads with EPA Water Sense label. 1 point.

ix. This proposal included 100 percent of new faucets with WPA Water Sense label. 1 point.

(c) Participation in local green/energy efficient building standards. Applicants, who participate in a city, county or municipality program, will receive an additional 2 points. The applicant should be aware and look for additional requirements that are sometimes embedded in the third-party program's rating and verification systems. 2 points.

10. Energy Generation (maximum 5 points).

Pre-applications which participate in the Green Communities program by the Enterprise Community Partners or an equivalent Agency approved program or receive at least 8 points for Energy Conservation measures are eligible to earn additional points for installation of on-site renewable energy sources. Renewable, on-site energy generation will complement a weather-tight, well insulated building envelope with highly efficient mechanical systems. Possible renewable energy generation technologies include, but are not limited to: wind turbines and micro-turbines, micro-hydro power, photovoltaic (capable of producing a voltage when exposed to radiant energy, especially light), solar hot water systems and biomass/biofuel systems that do not use fossil fuels in production. Geo-exchange systems are highly encouraged as they lessen the total demand for energy and, if supplemented with other renewable energy sources, can achieve zero energy consumption more easily.

Points under this paragraph will be awarded as follows. Projects with preliminary or rehabilitation building plans and energy analysis propose a 10 percent to 100 percent energy generation commitment (where generation is considered to be the total amount of energy needed to be generated on-site to make the building a net-zero consumer of energy) may be awarded points corresponding to their percent of commitment as follows:

In order to receive more than 1 point for this energy generation paragraph, an accurate energy analysis prepared by an engineer will need to be submitted with the pre-application. Energy analysis of preliminary building plans using industry-recognized simulation software must document the projected total energy consumption of the building, the portion of building consumption which will be satisfied through on-site generation, and the building's Home Energy Rating System (HERS) score.

11.Green Property Management Credentials (5 points).

Pre-applications may be awarded an additional 5 points if the designated property management company or individuals that will assume maintenance and operations responsibilities upon completion of construction work have a Credential for Green Property Management. Credentialing can be obtained from the National Apartment Association (NAA), National Affordable Housing Management Association, The Institute for Real Estate Management, U.S. Green Building Council's Leadership in Energy and Environmental Design forOperations and Maintenance (LEED OM), or another Agency approved source with a certifiable credentialing program. Credentialing must be illustrated in the resume(s) of the property management team and included with the pre-application.

The Agency will total the points awarded to each pre-application received within the timeframes of this Notice and rank each pre-application according to total score. If point totals are equal, the earliest time and date the pre-application was received by the Agency will determine the ranking. In the event pre-applications are still tied, they will be further ranked by giving priority to those projects with the earliest Rural Development operational date as defined under paragraph VII. 3.

B. Confirmation of Eligibility

Eligibility will be confirmed after ranking is completed on the 10 highest-scoring pre-applications in each State. If one or more of the 10 highest-scoring pre-applications is determined ineligible, (i.e. the applicant is a borrower that is not in good standing with the Agency or has been debarred or suspended by the Agency, etc.) the next highest-scoring pre-application will be confirmed for eligibility.

If one or more of the 10 highest-ranking pre-applications is a portfolio transaction, eligibility determinations will be conducted on each pre-application associated with the portfolio. Should any of the pre-applications associated with the portfolio sale be determined ineligible, those ineligible pre-application(s) will be rejected, but the overall eligibility of the portfolio sale will not be affected as long as the requirements in Section I and other provisions of this Notice are met.

If one or more of the 10 highest-ranking pre-applications in a State is a project consolidation, and one of the projects involved in the consolidation does not meet the occupancy standards cited in Section III (2), that project(s) will be determined ineligible and eliminated from the proposed consolidation transaction.

C. Selection of Pre-Applications for Further Processing

Once ranking and eligibility confirmations are complete, the Agency will conduct a four-step process to select eligible pre-applications for submission of formal applications. This process will allow the Agency to develop a representative sampling of revitalization transaction types, assure geographic distribution, and assure an adequate pipeline of transactions to use all available funding. All MPR tools are available to be used on both Section 514/516 and Section 515 projects.

Step One:The Agency will review the eligible pre-applications, categorize each pre-application as either Simple, Complex, or Portfolio (see section I) and sort them by State.

Step Two:The Agency will select, for further processing, the top-ranked portfolio transactions until a total of $50,000,000 in potential debt deferral is reached. Portfolio transactions will be limited to one per State (either RRH or FLH) and will count as one MPR transaction. A portfolio transaction, as defined in section I will be limited to a maximum of 15 projects.

Step Three:The highest ranked complex transactions (RRH or FLH) will be selected for further processing, not to exceed 1 per State.

Step Four:Additional projects will be selected from the highest ranked eligible pre-applications involving simple transactions in each State until a total of three RRH pre-applications for MPR transactions are reached. If a FLH complex transaction has not been selected in Step Three above, one additional FLH project will be selected from the highest ranked eligible pre-applications involving FLH simple transactions, until a total of four MPR pre-applications per State is reached. States that do not have a FLH pre-application will be limited to three MPR pre-applications.

If there are insufficient funds for all projects under any step, the Agency may suspend further selections. Any remaining eligible applications will be carried over to the next fiscal year for consideration. Any pre-applications that have not been approved by September 30, 2013, will be rescored and ranked with any future pre-applications according to the applicable future Notice unless it is withdrawn. Any such unfunded pre-applications not approved by the Agency prior to September 30, 2014, automatically will be considered withdrawn by the Agency. Applicants, however, may reapply for funding under future Notices.

VIII. Processing of Selected Pre-Applications

Those eligible pre-applications that are ranked and then selected for further processing will be invited to submit a formal application on SF 424, “Application for Federal Assistance.” Those eligible pre-applications that are not selected for further processing will be retained by the Agency unless they are withdrawn according to this Notice. Applicants rejected will be notified their pre-applications were not selected and provided with appeal rights under 7 CFR part 11. In the event a pre-application is selected for further processing and the applicant declines, the next highest ranked pre-application of the same transaction type in that State will be selected provided there is no change in the preliminary eligibility of the pre-applicant. If there are no other pre-applications of the same transaction type, then the next highest-ranked pre-application, regardless of transaction type, will be selected.

Applications (SF 424s) can be obtained and completed online. An electronic version of this form may be found on the internet athttp://www.epa.gov/ogd/AppKit/index.htmor a hard copy may be obtained by contacting the State Office in the State where the project is located and can be submitted either electronically or in hard copy (refer to Section X for a listing of State Offices)

Awards made under this Notice are subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012, Public Law 112-55, Division A sections 738 and 739 regarding corporate felony convictions and corporate federal tax delinquencies. To comply with these provisions, all applicants also must submit form AD-3030 which can be found here:http://www.ocio.usda.gov/forms/ocio_forms.html.

If a pre-application is accepted for further processing, the applicant must submit additional information needed to demonstrate eligibility and feasibility (such as a CNA), consistent with this Notice and the appropriate sections of 7 CFR part 3560, prior to the issuance of any restructuring offer. The Agency will provide additional guidance to the applicant and request information and documents necessary to complete the underwriting and review process. Since the character of each application may vary substantially depending on the type of transaction proposed, information requirements will be provided as appropriate. Complete project information must be submitted as soon as possible, but in no case later than 45 calendar days from the date of Agency notification of the applicant's selection for further processing or September 1, 2013, whichever occurs first. Failure to submit the required information in a timely manner may result in the Agency discontinuing the processing of the request.

The Agency will work with the applicants selected for further processing in accordance with the following:

1. Based on the feasibility of the type of transaction that will best suit the project and the availability of funds, further eligibility confirmation determinations will be conducted by the Agency.

2. If an Agency approved CNA has not already been submitted to the Agency, an Agency approved CNA will be required (see 7 CFR 3560.103(c) and the Agency's published “Guidance on the Capital Needs Assessment Process” available athttp://www.rurdev.usda.gov/HMF_MPR.htmland the CNA Statement of Work together with any non-conflicting amendments). Agency approved CNAs must be prepared by a qualified independent contractor and are obtained to determine needed repairs and any necessary adjustments to the reserve account for long-term project viability. In order for the Agency to approve a CNA it must also include:

i. A physical inspection of the site, architectural features, common areas and all electrical and mechanical systems;

ii. An inspection of a sample of dwelling units;

iii. Identify repair or replacement needs;

iv. Provide a cost estimate of the repair and replacement expenses; and

v. Provide at least a 20-year analysis of the timing and funding for identified needs which includes reasonable assumptions regarding inflation. The cost of the CNA will be considered a part of the project expense and may be paid from the “project reserve” with prior approval of the Agency. The Agency approval for participation in this program will be contingent upon the Agency's final approval of the CNA and concurrence in the scope of work by the owner. The Agency, in its sole discretion, may choose to obtain a CNA, at its expense, if it determines that doing so is in the best interest of the Government.

3. Underwriting will be conducted by the Agency. The feasibility and structure of each revitalization proposal will be based on the Agency's underwriting and determination of the restructuring tools that will minimize the cost to the Government consistent with the purposes of this Notice.

IX. MPR Offers

Approved MPR offers will be presented to successful applicants who will then have up to 15 calendar days to accept or reject the offer in writing. If no offer is made, the application will be rejected and appeal rights will be given. Closing of MPR offers will occur within 90 days of acceptance by the applicant unless extended in writing by the Agency.

The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

Agency:National Oceanic and Atmospheric Administration (NOAA).

Title:Modification to Gulf of Maine/Georges Bank Herring Letter of Authorization.

OMB Control Number:0648-0602.

Form Number(s):NA.

Type of Request:Regular submission (extension of a current information collection).

Number of Respondents:46.

Average Hours Per Response:5 minutes.

Burden Hours:12.

Needs and Uses:This request is for extension of a current information collection.

Under the Magnuson-Stevens Fishery Conservation and Management Act, the Secretary of Commerce has the responsibility for the conservation and management of marine fishery resources. We, NOAA's National Marine Fisheries Service (NMFS), and the Regional Fishery Management Councils are delegated the majority of this responsibility. The New England Fishery Management Council (Council) develops management plans for fishery resources in New England.

In 2009, we implemented modifications to the requirements for midwater trawl vessels issued an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit that fish in Northeast (NE) multispecies Closed Area I (CA I). Affected vessels intending to fish in CA I at any point during a trip are required to declare their intention when scheduling a NMFS-approved at sea observer. To ensure 100 percent observer coverage, midwater trawl vessels are not permitted to fish in CA I without an observer.

Midwater trawl vessels in the directed herring fishery that have been assigned a NMFS-approved at-sea observer and that are fishing in CA I, are prohibited, unless specific conditions are met (see below), from releasing fish from the codend of the net, transferring fish to another vessel that is not carrying a NMFS-approved observer, or discarding fish at sea, unless the fish have first been brought aboard the vessel and made available for sampling and inspection by the observer.

We recognize that there are certain conditions under which fish must be released from the codend without being sampled. Therefore, fish that have not been pumped aboard the vessel may be released if the vessel operator finds that: Pumping the catch could compromise the safety of the vessel; mechanical failure precludes bringing some or all of a catch aboard the vessel; or spiny dogfish have clogged the pump and consequently prevent pumping of the rest of the catch. If a net is released for any of these three reasons, the vessel operator must complete and sign a CA I Midwater Trawl Released Codend Affidavit detailing where, when, and why the net was released as well as a good-faith estimate of both the total weight of fish caught on that tow and the weight of fish released (if the tow had been partially pumped). The completed affidavit form must be submitted to us within 48 hr of the completion of the trip.

Following the release of a net for one of the three exemptions specified above, the vessel is required to exit CA I. The vessel may continue to fish, but may not fish in CA I for the remainder of the trip.

The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

Agency:National Oceanic and Atmospheric Administration (NOAA).

Title:Jones and NOAA Awards Nominations.

OMB Control Number:0648-0598.

Form Number(s):NA.

Type of Request:Regular submission (revision and extension of a current information collection).

Number of Respondents:13.

Average Hours per Response:1.

Burden Hours:13.

Needs and Uses:This request is for revision and extension of a currently approved information collection.

The 1990 reauthorization of the Coastal Zone Management Act (CZMA) authorized an awards program to “implement a program to promote excellence in coastal zone management by identifying and acknowledging outstanding accomplishments in the field.” As authorized in Section 314 of the CZMA, the Walter B. Jones Memorial Awards recognize three categories of excellence: Coastal Steward of the Year, Excellence in Local Government, and Excellence in Coastal and Marine Graduate Study. The CZMA authorizes NOAA to conduct public ceremonies to acknowledge such awards, which allows NOAA to fund invitational travel and purchase awards for the Jones Awards.

In conjunction with the Walter B. Jones Memorial Awards, NOAA instituted several additional categories of awards, to recognize additional contributions to ocean and coastal resource management, including Volunteer of the Year, Nongovernmental Organization of the Year, Excellence in Promoting Cultural and Ethnic Diversity (in honor of Secretary Ronald Brown), Excellence in Business Leadership, and the Susan Snow Cotter Award for Excellence in Ocean and Coastal Resource (NOAA re-named this award in honor of Susan Snow Cotter in 2007).

As part of conducting the awards program, NOAA will distribute a “Call for Nominations” to representatives from Federal, state, local and nongovernmental organizations and Members of Congress that work in, are knowledgeable of or benefit from, ocean and coastal resource management.Revision: The call for nominations brochure was digitalized in 2012 and is now emailed to NOAA constituents and available during the nomination period athttp://oceanservice.noaa.gov/programs/ocrm/jones-noaa-awards.html.

The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

Agency:National Oceanic and Atmospheric Administration (NOAA).

Title:Limits on Application of Take Prohibitions—Threatened Salmonids.

OMB Control Number:0648-0399.

Form Number(s):NA.

Type of Request:Regular submission (extension of a current information collection).

Needs and Uses:This request is for extension of a current information collection.

Section 4(d) of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et. seq.) requires the National Marine Fisheries Service (NMFS) to adopt such regulations as it “deems necessary and advisable to provide for the conservation of” threatened species. Those regulations may include any or all of the prohibitions provided in section 9(a)(1) of the ESA, which specifically prohibits “take” of any endangered species (“take” includes actions that harass, harm, pursue, kill, or capture). The first salmonid species listed by NMFS as threatened were protected by virtually blanket application of the section 9 take prohibitions. There are now 22 separate Distinct Population Segments (DPS) of west coast salmonids listed as threatened, covering a large percentage of the land base in California, Oregon, Washington and Idaho. NMFS is obligated to enact necessary and advisable protective regulations. NMFS makes section 9 prohibitions generally applicable to many of those threatened DPS, but also seeks to respond to requests from states and others to both provide more guidance on how to protect threatened salmonids and avoid take, and to limit the application of take prohibitions wherever warranted (see 70 FR 37160, June 28, 2005, 71 FR 834, January 5, 2006, and 73 FR 55451, September 25, 2008). The regulations describe programs or circumstances that contribute to the conservation of, or are being conducted in a way that limits impacts on, listed salmonids. Because we have determined that such programs/circumstances adequately protect listed salmonids, the regulations do not apply the “take” prohibitions to them. Some of these limits on the take prohibitions entail voluntary submission of a plan to NMFS and/or annual or occasional reports by entities wishing to take advantage of these limits, or continue within them.

Affected Public:Business or other for-profit organizations, state, local or tribal government.

An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Greater Maricopa Foreign-Trade Zone, Inc., grantee of Foreign-Trade Zone 277, requesting authority to expand its zone under the alternative site framework (ASF) adopted by the Board (15 CFR Sec. 400.2(c)) to include two additional new magnet sites in western Maricopa County, Arizona and request usage-driven designation for an existing temporary site. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u) and the regulations of the Board (15 CFR part 400). It was formally docketed on December 12, 2012.

FTZ 277 was approved by the Board on December 22, 2010 (Board Order 1733, 76 FR 1134, 01/07/2011) and was reorganized under the ASF on December 16, 2011 (Board Order 1804, 76 FR 80886, 12/27/2011). The zone project currently has a service area that includes a portion of Maricopa County, Arizona.

The applicant is now requesting authority to expand its zone project in western Maricopa County as follows: include an additional magnet site (proposedSite 7—185 acres) at the Buckeye Industrial Park, southeast corner of Turner Road and Baseline Road, Buckeye; expand existingSite 5to include an additional 184.33 acres (total acreage 198 acres) and request magnet designation for the site; and, request that existingSite 6be designated as a usage-driven site for the sole use of Schoeller Arca Systems, Inc. The proposed new and the existing sites are located adjacent to the Phoenix, Arizona U.S. Customs and Border Protection Ports of Entry.

In accordance with the Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.

Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is February 19, 2013. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to March 4, 2013.

A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible viawww.trade.gov/ftz.For further information, contact Christopher Kemp atChristopher.Kemp@trade.govor (202) 482-0862.

An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Puerto Rico Trade & Export Company, grantee of FTZ 61, requesting special-purpose subzone status for the facility of Sea World, Inc., located in Guaynabo, Puerto Rico. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on December 12, 2012.

The proposed subzone (1.71 acres) is located within the Amelia Industrial Park at Calle Diana Lot 36, Guaynabo, Puerto Rico. No authorization for production activity has been requested at this time. The proposed subzone would be subject to the existing activation limit of FTZ 61.

In accordance with the Board's regulations, Camille Evans of the FTZ Staff is the designated examiner to review the application and make recommendations to the Executive Secretary.

Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is January 28, 2013. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to February 12, 2013.

A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible viawww.trade.gov/ftz. For further information, contact Camille Evans atCamille.Evans@trade.govor (202) 482-2350.

The Bureau of Industry and Security (BIS) is seeking public comments on the impact that implementation of the Chemical Weapons Convention (CWC), through the Chemical Weapons Convention Implementation Act (CWCIA) and the Chemical Weapons Convention Regulations (CWCR), has had on commercial activities involving “Schedule 1” chemicals during calendar year 2012. The purpose of this notice of inquiry is to collect information to assist BIS in its preparation of the annual certification to the Congress, which is required under Condition 9 of Senate Resolution 75, April 24, 1997, in which the Senate gave its advice and consent to the ratification of the CWC.

DATES:

Comments must be received by January 18, 2013.

ADDRESSES:

You may submit comments by any of the following methods:

•Email:willard.fisher@bis.doc.gov. Include the phrase “Schedule 1 Notice of Inquiry” in the subject line;

In providing its advice and consent to the ratification of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction, commonly called the Chemical Weapons Convention (CWC or “the Convention”), the Senate included, in Senate Resolution 75 (S. Res. 75, April 24, 1997), several conditions to its ratification. Condition 9, titled “Protection of Advanced Biotechnology,” calls for the President to certify to Congress on an annual basis that “the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms in the United States are not being significantly harmed by the limitations of the Convention on access to, and production of, those chemicals and toxins listed in Schedule 1.” On July 8, 2004, President Bush, by Executive Order 13346, delegated his authority to make the annual certification to the Secretary of Commerce.

The CWC is an international arms control treaty that contains certain verification provisions. In order to implement these verification provisions, the CWC established the Organization for the Prohibition of Chemical Weapons (OPCW). The CWC imposes certain obligations on countries that have ratified the Convention (i.e., States Parties), among which are the enactment of legislation to prohibit the production, storage, and use of chemical weapons, and the establishment of a National Authority to serve as the national focal point for effective liaison with the OPCW and other States Parties. The CWC also requires each State Party to implement a comprehensive data declaration and inspection regime to provide transparency and to verify that both the public and private sectors of the State Party are not engaged in activities prohibited under the CWC.

“Schedule 1” chemicals consist of those toxic chemicals and precursors set forth in the CWC “Annex on Chemicals” and in Supplement No. 1 to part 712 of the Chemical Weapons Convention Regulations (CWCR) (15 CFR parts 710-722). The CWC identified these toxic chemicals and precursors as posing a high risk to the object and purpose of the Convention.

The CWC (Part VI of the “Verification Annex”) restricts the production of “Schedule 1” chemicals for protective purposes to two facilities per State Party: a single small-scale facility (SSSF) and a facility for production in quantities not exceeding 10 kg per year. The CWC Article-by-Article Analysis submitted to the Senate in Treaty Doc. 103-21 defined the term “protective purposes” to mean “used for determining the adequacy of defense equipment and measures.” Consistent with this definition and as authorized by Presidential Decision Directive (PDD) 70 (December 17, 1999), which specifies agency and departmental responsibilities as part of the U.S. implementation of the CWC, the Department of Defense (DOD) was assigned the responsibility to operate these two facilities, thereby precluding commercial production of “Schedule 1” chemicals for protective purposes in the United States. The assignment of responsibility to DOD did not establish any limitations on “Schedule 1” chemical activities that are not prohibited by the CWC. However, the Department of Defense maintains strict controls on “Schedule 1” chemicals produced at its facilities in order to ensure the accountability and proper use of such chemicals, consistent with the object and purpose of the Convention.

The provisions of the CWC that affect commercial activities involving “Schedule 1” chemicals are implemented in the CWCR (see 15 CFR 712) and in the Export Administration Regulations (EAR) (see 15 CFR 742.18 and 15 CFR part 745), both of which are administered by the Bureau of Industry and Security (BIS). Pursuant to CWC requirements, the CWCR restrict commercial production of “Schedule 1” chemicals to research, medical, or pharmaceutical purposes (commercial production for “protective purposes” is precluded, as described above). The CWCR also contain other requirements and prohibitions that apply to “Schedule 1” chemicals and/or “Schedule 1” facilities. Specifically, the CWCR:

(1) Prohibit the import of “Schedule 1” chemicals from States not Party to the Convention (15 CFR 712.2(b));

(2) Require annual declarations by certain facilities engaged in the production of “Schedule 1” chemicals in excess of 100 grams aggregate per calendar year (i.e., declared “Schedule 1” facilities) for purposes not prohibited by the Convention (15 CFR 712.5(a)(1) and (a)(2));

(4) Provide that “declared Schedule 1” facilities are subject to initial and routine inspection by the Organization for the Prohibition of Chemical Weapons (15 CFR 712.5(e) and 716.1(b)(1));

(5) Require 200 days advance notification of establishment of new “Schedule 1” production facilities producing greater than 100 grams aggregate of “Schedule 1” chemicals per calendar year (15 CFR 712.4);

(6) Require advance notification and annual reporting of all imports and exports of “Schedule 1” chemicals to, or from, other States Parties to the Convention (15 CFR 712.6, 742.18(a)(1) and 745.1); and

(7) Prohibit the export of “Schedule 1” chemicals to States not Party to the Convention (15 CFR 742.18(a)(1) and (b)(1)(ii)).

For purposes of the CWCR (see 15 CFR 710.1), “production of a Schedule 1 chemical” means the formation of “Schedule 1” chemicals through chemical synthesis, as well as processing to extract and isolate “Schedule 1” chemicals. Such production is understood, for CWCR declaration purposes, to include intermediates, by-products, or waste products that are produced and consumed within a defined chemical manufacturing sequence, where such intermediates, by-products, or waste products are chemically stable and therefore exist for a sufficient time to make isolation from the manufacturing stream possible, but where, under normal or design operating conditions, isolation does not occur.

Request for Comments

In order to assist in determining whether the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms in the United States are significantly harmed by the limitations of the Convention on access to, and production of, “Schedule 1” chemicals as described in this notice, BIS is seeking public comments on any effects that implementation of the Chemical Weapons Convention, through the Chemical Weapons Convention Implementation Act and the Chemical Weapons Convention Regulations, has had on commercial activities involving “Schedule 1” chemicals during calendar year 2012. To allow BIS to properly evaluate the significance of any harm to commercial activities involving “Schedule 1” chemicals, public comments submitted in response to this notice of inquiry should include both a quantitative and qualitative assessment of the impact of the CWC on such activities.

Submission of Comments

All comments must be submitted to one of the addresses indicated in thisnotice. The Department requires that all comments be submitted in written form.

The Department encourages interested persons who wish to comment to do so at the earliest possible time. The period for submission of comments will close on January 18, 2013. The Department will consider all comments received before the close of the comment period. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. The Department will not accept comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. The Department will return such comments and materials to the persons submitting the comments and will not consider them. All comments submitted in response to this notice will be a matter of public record and will be available for public inspection and copying.

The Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce, displays public comments on the BIS Freedom of Information Act (FOIA) Web site athttp://www.bis.doc.gov/foia. This office does not maintain a separate public inspection facility. If you have technical difficulties accessing this Web site, please call BIS's Office of Administration, at (202) 482-1093, for assistance.

The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

Requests for additional information or copies of the information collection instrument and instructions should be directed to Laurie Mease, Office of Textiles and Apparel, Telephone: 202-482-3400, Fax: 202-482-0858, Email:Laurie.Mease@trade.gov.

SUPPLEMENTARY INFORMATION:I. Abstract

Title II, Section 203(o) of the United States-Panama Trade Promotion Agreement Implementation Act (the “Act”) [Pub. L. 112-43] implements the commercial availability provision provided for in Article 3.25 of the United States-Panama Trade Promotion Agreement (the “Agreement”). The Agreement entered into force on October 31, 2012. Subject to the rules of origin in Annex 4.1 of the Agreement, pursuant to the textile provisions of the Agreement, fabric, yarn, and fiber produced in Panama or the United States and traded between the two countries are entitled to duty-free tariff treatment. Annex 3.25 of the Agreement also lists specific fabrics, yarns, and fibers that the two countries agreed are not available in commercial quantities in a timely manner from producers in Panama or the United States. The fabrics listed are commercially unavailable fabrics, yarns, and fibers, which are also entitled to duty-free treatment despite not being produced in Panama or the United States.

The list of commercially unavailable fabrics, yarns, and fibers may be changed pursuant to the commercial availability provision in Chapter 3, Article 3.25, Paragraphs 4-6 of the Agreement. Under this provision, interested entities from Panama or the United States have the right to request that a specific fabric, yarn, or fiber be added to, or removed from, the list of commercially unavailable fabrics, yarns, and fibers in Annex 3.25 of the Agreement.

Chapter 3, Article 3.25, paragraph 6 of the Agreement requires that the President “promptly” publish procedures for parties to exercise the right to make these requests. Section 203(o)(4) of the Act authorizes the President to establish procedures to modify the list of fabrics, yarns, or fibers not available in commercial quantities in a timely manner in either the United States or Panama as set out in Annex 3.25 of the Agreement. The President delegated the responsibility for publishing the procedures and administering commercial availability requests to the Committee for the Implementation of Textile Agreements (“CITA”), which issues procedures and acts on requests through the U.S. Department of Commerce, Office of Textiles and Apparel (“OTEXA”) (See Proclamation No. 8894, 77 FR 66507, November 5, 2012).

The intent of the U.S.-Panama TPA Commercial Availability Procedures is to foster the use of U.S. and regional products by implementing procedures that allow products to be placed on or removed from a product list, on a timely basis, and in a manner that is consistent with normal business practice. The procedures are intended to facilitate the transmission of requests; allow the market to indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and the public, information regarding the requests for products and offers received for those products; ensure wide participation by interested entities and parties; allow for careful review and consideration of information provided to substantiate requests, responses, and rebuttals; and provide timely public dissemination of information used by CITA in making commercial availability determinations.

CITA must collect certain information about fabric, yarn, or fiber technical specifications and the production capabilities of Panamanian and U.S. textile producers to determine whether certain fabrics, yarns, or fibers are available in commercial quantities in a timely manner in the United States or Panama, subject to Section 203(o) of the Act.

II. Method of Collection

Participants in a commercial availability proceeding must submit public versions of their Requests, Responses or Rebuttals electronically (via email) for posting on OTEXA's Web site. Confidential versions of those submissions which contain business confidential information must be delivered in hard copy to OTEXA.

III. Data

OMB Control Number:None.

Form Number(s):None.

Type of Review:Regular submission (new information collection).

Affected Public:Business or other for-profit organizations.

Estimated Number of Respondents:16.

Estimated Time per Response:8 hours per Request, 2 hours per Response, and 1 hour per Rebuttal.

Estimated Total Annual Burden Hours:89.

Estimated Total Annual Cost to Public:$5,340.

IV. Request for Comments

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

Notification of annual quantitative limit on certain apparel under HOPE.

DATES:

Effective Date:December 20, 2012.

FOR FURTHER INFORMATION CONTACT:

Maria Dybczak, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3651.

SUPPLEMENTARY INFORMATION:

HOPE provides for duty-free treatment for certain apparel articles imported directly from Haiti. Section 213A(b)(1)(B) of HOPE outlines the requirements for certain apparel articles to qualify for duty-free treatment under a “value-added” program. In order to qualify for duty-free treatment, apparel articles must be wholly assembled, or knit-to-shape, in Haiti from any combination of fabrics, fabric components, components knit-to-shape, and yarns, as long as the sum of the cost or value of materials produced in Haiti or one or more countries, as described in HOPE, or any combination thereof, plus the direct costs of processing operations performed in Haiti or one or more countries, as described in HOPE, or any combination thereof, is not less than an applicable percentage of the declared customs value of such apparel articles. Pursuant to HELP, the applicable percentage for the period December 20, 2012 through December 19, 2013, is 50 percent or more.

For every twelve-month period following the effective date of HOPE, duty-free treatment under the value-added program is subject to a quantitative limitation. HOPE provides that the quantitative limitation will be recalculated for each subsequent 12-month period. Section 213A (b)(1)(C) of HOPE, as amended by Title V of the Tax Relief and Health Care Act of 2006 and the Food, Conservation, and Energy Act of 2008 (HOPE II) and Haiti Economic Lift Program Act of 2010 (HELP), requires that, for the twelve-month period beginning on December 20, 2012, the quantitative limitation for qualifying apparel imported from Haiti under the value-added program will be an amount equivalent to 1.25 percent of the aggregate square meter equivalent of all apparel articles imported into the United States in the most recent 12-month period for which data are available. The aggregate square meters equivalent of all apparel articles imported into the United States is derived from the set of Harmonized System lines listed in the Annex to the World Trade Organization Agreement on Textiles and Clothing (“ATC”), and the conversion factors for units of measure into square meter equivalents used by the United States in implementing the ATC. For purposes of this notice, the most recent 12-month period for which data are available as of December 20, 2012 is the 12-month period ending on October 31, 2012.

Therefore, for the one-year period beginning on December 20, 2012 and extending through December 19, 2013, the quantity of imports eligible for preferential treatment under the value-added program is 306,742,329 square meters equivalent. Apparel articles entered in excess of these quantities will be subject to otherwise applicable tariffs.

Notice of an opportunity to apply for membership on the United States Travel and Tourism Advisory Board.

SUMMARY:

The Department of Commerce is currently seeking applications for four memberships on the United States Travel and Tourism Advisory Board (Board). The purpose of the Board is to advise the Secretary of Commerce on matters relating to the travel and tourism industry.

DATES:

All applications for immediate consideration for appointment must be received by the Office of Advisory Committees by 5 p.m. Eastern Standard Time (EST) on December 28, 2012. After that date, the Department will continue to accept applications under this notice through August 30, 2013 to fill any vacancies that may arise.

The United States Travel and Tourism Advisory Board (Board) is established under the Federal Advisory Committee Act, as amended, 5 U.S.C. App. (FACA), and advises the Secretary of Commerce (Secretary) on matters relating to the U.S. travel and tourism industry pursuant to 15 U.S.C. 1512. The Board provides a means of ensuring regular contact between the U.S. Government and the travel and tourism industry. The Board advises the Secretary on government policies and programs that affect United States travel and tourism, and the Board serves as forum for discussing and proposing solutions to industry-related problems.

The Board acts as a liaison among the stakeholders represented by the membership and provides a forum for those stakeholders on current and emerging issues in the travel and tourism sector. The Board recommends ways to ensure that the United States remains the preeminent destination for international visitation and tourism throughout the world. The Office of Advisory Committees is accepting applications for Board members. Members shall represent companies and organizations in the travel and tourism sector from a broad range of products and services, company sizes, and geographic locations and shall be drawn from large, medium, and small travel and tourism companies, private-sector organizations involved in the export of travel and tourism-related products and services, and other tourism-related entities.

Each Board member shall serve as the representative of a U.S. company in the travel and tourism industry, a U.S. organization involved in the export of travel and tourism-related products and services, or a tourism-related U.S. entity. For eligibility purposes, a “U.S. company” is a for-profit firm that is incorporated in the United States (or an unincorporated U.S. firm with its principal place of business in the United States) that is controlled by U.S. citizens or by other U.S. companies. A company is not a U.S. company if 50 percent plus one share of its stock (if a corporation, or a similar ownership interest of an unincorporated entity) is known to be controlled, directly or indirectly, by non-U.S. citizens or non-U.S. companies. For eligibility purposes, a “U.S. organization” is an organization, including trade associations and nongovernmental organizations (NGOs), established under the laws of the United States, that is controlled by U.S. citizens, by another U.S. organization (or organizations), or by a U.S. company (or companies), as determined based on its board of directors (or comparable governing body), membership, and funding sources, as applicable. For eligibility purposes, a U.S. entity includes state and local tourism marketing entities, state government tourism offices, state and/or local government-supported tourism marketing entities, multi-state tourism marketing entities, and other tourism-related entities that can demonstrate U.S. ownership or control.

Members of the Board will be selected, in accordance with applicable Department of Commerce guidelines, based on their ability to carry out the objectives of the Board as set forth above. Members of the Board shall be selected in a manner that ensures that the Board is balanced in terms of points of view, industry subsector, range of products and services, demographics, geography, and company size.

Additional factors which will be considered in the selection of Board members include candidates' proven experience in the strategic development and management of travel and tourism-related or other service-related organizations; or the candidate's proven experience in promoting, developing, and implementing advertising and marketing programs for travel-related or tourism-related industries.

Priority may be given to a Chief Executive Officer, Executive Director, or President (or comparable level of responsibility) of a U.S. company, U.S. organization, or U.S. entity in the travel and tourism sector.

Members will be appointed to fill vacancies for the remainder of their current appointment terms. All appointments will automatically terminate no later than November 15, 2013. Members will serve at the discretion of the Secretary of Commerce.

Members shall serve in a representative capacity, representing the views and interests of their particular industry subsector. Board members are not special government employees, and will receive no compensation for their participation in Board activities.

Members participating in Board meetings and events will be responsible for their travel, living and other personal expenses. Meetings will be held regularly and, to the extent practical, not less than twice annually, usually in Washington, DC. To be considered immediately for membership, please provide the following information by the 12/28/2012, 5 p.m. EST deadline, via email, toOACIE@trade.govor, via mail, to Jennifer Pilat, Office of Advisory Committees, U.S. Travel and Tourism Advisory Board Executive Secretariat, U.S. Department of Commerce, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230. After that date, the Department will continue to accept applications under this notice through August 30, 2013 to fill any vacancies that may arise.

1. Name and title of the individual requesting consideration.

2. A sponsor letter from the applicant on his or her company/organization/entity letterhead or, if the applicant is to represent a company/organization/entity other than his or her employer, a letter from the company/organization/entity to be represented, containing a brief statement of why the applicant should be considered for membership on the Board. This sponsor letter should also address the applicant's travel and tourism-related experience.

3. The applicant's personal resume.

4. An affirmative statement that the applicant is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

5. An affirmative statement by the applicant that he or she is not a Federally registered lobbyist, and that the applicant understands that he or she, if appointed, will not be allowed to continue to serve as a Board member if the applicant becomes a Federally registered lobbyist.

6. If the applicant represents a tourism-related U.S. entity, the functions and responsibilities of the entity, and information regarding the entity's U.S. ownership or control.

7. If the applicant represents an organization, information regarding the control of the organization, including the governing structure, members, and revenue sources as appropriate signifying compliance with the criteria set forth above.

8. If the applicant represents a company, information regarding the control of the company, including the governing structure and stock holdings as appropriate signifying compliance with the criteria set forth above.

9. The company's, organization's, or entity's size and ownership, product or service line and major markets in which the company, organization, or operates.

10. Brief statement describing how the applicant will contribute to the work of the Board based on his or her unique experience and perspective (not to exceed 100 words).

Committee for Purchase from People Who Are Blind or Severely Disabled.

ACTION:

Appointment of Performance Review Board for Senior Executive Service.

SUMMARY:

The Committee For Purchase from People Who Are Blind Or Severely Disabled (Committee) has announced the following appointments to the Committee Performance Review Board.

The following individuals are appointed as members of the Committee Performance Review Board responsible for making recommendations to the appointing and awarding authorities on performance appraisal ratings and performance awards for Senior Executive Service employees:

Patricia Briscoe,Deputy Director, Business Operations (Pricing and Information Management).[FR Doc. 2012-30477 Filed 12-18-12; 8:45 am]BILLING CODE 6353-01-PDEPARTMENT OF DEFENSEOffice of the SecretaryDepartment of Defense Task Force on the Care, Management, and Transition of Recovering Wounded, Ill, and Injured Members of the Armed Forces; Notice of Federal Advisory Committee MeetingAGENCY:

Department of Defense, Office of the Assistant Secretary of Defense.

ACTION:

Meeting notice.

SUMMARY:

Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal Advisory Committee meeting of the Department of Defense Task Force on the Care, Management, and Transition of Recovering Wounded, Ill, and Injured Members of the Armed Forces (subsequently referred to as the Task Force) will take place.

DATES:

Monday, January 14, 2013 and Tuesday, January 15, 2013 from 8:00 a.m. to 5:00 p.m. EDT, each day.

Public's Accessibility to the Meeting:Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis.

Pursuant to 41 CFR §§ 102-3.105(j) and 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the Department of Defense Task Force on the Care, Management, and Transition of Recovering Wounded, Ill, and Injured Members of the Armed Forces about its mission and functions. If individuals are interested in making an oral statement during the Public Forum time period, a written statement for a presentation of two minutes must be submitted as below and must identify it is being submitted for an oral presentation by the person making the submission. Identification information must be provided and at a minimum must include a name and a phone number. Individuals may visit the Task Force Web site athttp://dtf.defense.gov/rwtf/to view the Charter. Individuals making presentations will be notified by Wednesday, January 9, 2013. Oral presentations will be permitted only on Tuesday, January 15, 2013 from 8:00 a.m. to 8:15 a.m. EDT before the Task Force. The number of oral presentations will not exceed ten, with one minute of questions available to the Task Force members per presenter. Presenters should not exceed their two minutes.

Written statements in which the author does not wish to present orally may be submitted at any time or in response to the stated agenda of a planned meeting of the Department of Defense Task Force on the Care, Management, and Transition of Recovering Wounded, Ill, and Injured Members of the Armed Forces.

All written statements shall be submitted to the Designated Federal Officer for the Task Force through the contact information inFOR FURTHER INFORMATION CONTACT, and this individual will ensure that the written statements are provided to the membership for their consideration.

Statements, either oral or written, being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed no later than 5:00 p.m. EDT, Monday, January 7, 2013 which is the subject of this notice. Statements received after this date may not be provided to or considered by the Task Force until its next meeting. Please mark mail correspondence as “Time Sensitive for January Meeting.”

The Designated Federal Officer will review all timely submissions with the Task Force Co-Chairs and ensure they are provided to all members of the Task Force before the meeting that is the subject of this notice.

Reasonable accommodations will be made for those individuals with disabilities who request them. Requests for additional services should be directed to Ms. Heather Moore, (703) 325-6640, by 5:00 p.m. EDT, Monday, January 7, 2013.

On October 18, 2012, the U.S. Department of Education published a 60-day comment period notice in theFederal Register(include Vol. #, 77, Page 64111, Column 2) seeking public comment for an information collection entitled, “Annual Performance Report for the Gaining Early Awareness for Undergraduate Programs.” ED is extending the comment period to January 4, 2013 due to the public's inability to access the collection at the beginning of the comment period. Please provide comments through regulations.gov site. The Docket ID number is ED-2012-OPE-0036.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501et seq.), ED is proposing a new information collection.

DATES:

Interested persons are invited to submit comments on or before 2/18/2013.

ADDRESSES:

Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal athttp://www.regulations.govby selecting Docket ID number ED-2012-ICCD-0069 or via postal mail, commercial delivery, or hand delivery.Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted.Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E117, Washington, DC 20202-4537.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection:Foreign Graduate Medical School Consumer Information Reporting Form.

Abstract:This is a request for a new collection to obtain consumer information from foreign graduate medical institutions that participate in the William D. Ford Federal Direct Loan Program (Direct Loan Program) as authorized under Title IV of the Higher Education Act of 1963, as amended, (HEA). The request is to gain approval of a form for reporting specific graduation information to the Department of Education (Department) with a certification signed by the institutions President/CEO/Chancellor as well as for disseminating that information to prospective U.S. students. The Departments regulations, at 34 CFR 668.14(b)(7), require Title IV participating institutions to submit reports to the Department containing such information as the Secretary may reasonably require to carry out the purposes of the Title IV, HEA programs. This is being done to improve consumer information by providing more specific consumer information to prospectiveU.S. medical students at foreign institutions.

Under the Federal Advisory Committee Act, Public Law 92-463, EPA gives notice of a teleconference meeting of the Farm, Ranch, and Rural Communities Committee (FRRCC). The FRRCC is a policy-oriented committee that provides policy advice, information, and recommendations to the EPA Administrator on a range of environmental issues and policies that are of importance to agriculture and rural communities.

The purpose of this teleconference is to discuss specific topics of relevance for consideration by the Committee in order to provide advice and insights to the Agency on environmental policies and programs that affect and engage agriculture and rural communities.

DATES:

The Farm, Ranch, and Rural Communities Committee will hold a public teleconference on Thursday, January 17, 2013 from 2:00 p.m. until 4:00 p.m. Eastern Standard Time.

Members of the public wishing to gain access to the teleconference, make brief oral comments, or provide a written statement to the FRRCC must contact Alicia Kaiser, Designated Federal Officer, atkaiser.alicia@epa.govor 202-564-7273 by January 4, 2013.

Meeting Access:For information on access or services for individuals with disabilities or to request accommodations please contact Alicia Kaiser atkaiser.alicia@epa.govor 202-564-7273, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request.

EPA has received applications to register pesticide products containing an active ingredient not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.

DATES:

Comments must be received on or before January 18, 2013.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number and the EPA File Symbol of interest as shown in the body of this document, by one of the following methods:

•Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

•Hand Delivery:To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at: http://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, are available athttp://www.epa.gov/dockets.FOR FURTHER INFORMATION CONTACT:

A contact person is listed at the end of each registration application summary and may be contacted by telephone, email, or mail. Mail correspondence to the Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. As part of the mailing address, include the contact person's name, division, and mail code.

SUPPLEMENTARY INFORMATION:I. General InformationA. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of the North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

B. What should I consider as I prepare my comments for EPA?

1.Submitting CBI.Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. Registration Applications

EPA has received applications to register pesticide products containing an active ingredient not included in any currently registered pesticide products. Pursuant to the provisions of FIFRA section 3(c)(4), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications. For actions being evaluated under the Agency's public participation process for registration actions, there will be an additional opportunity for a 30-day public comment period on the proposed decision. Please see the Agency's public participation Web site for additional information on this process (http://www.epa.gov/pesticides/regulating/registration-public-involvement.html). EPA received the following applications to register pesticide products containing an active ingredient not included in any currently registered products:

This notice announces receipt of applications to register new uses for pesticide products containing currently registered active ingredients pursuant to the provisions of section 3(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. This notice provides the public with an opportunity to comment on the applications.

DATES:

Comments must be received on or before January 18, 2013.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number and the EPA Registration Number or EPA File Symbol for the product of interest to you as shown in the body of this document, by one of the following methods:

•Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.